Posts By tcof8889

Elf Off the Shelf back on the shelf

A new copyright and trademark parody case, CCA and B, LLC v. F + W Media, Inc. (N.D. Ga. Sept. 22, 2011), finds that the parody Elf off the Shelf  likely does not infringe the copyright or trademark in plaintiff’s Elf on the Shelf.

Sex, Drugs, and the Public Trust

Let’s talk about this.  From the beginning, there was no private ownership of water.  Under Roman law, tidewaters (like rivers and seas) and submerged lands (stream beds and shoreline) were community property, held in trust by the state for the benefit of the public.  This approach to water management endured for most of human history.  Consider, for example, 13th century Spain.  Las Siete Partidas, the laws of Spain set forth by Alfonso the Wise, recognized public rights in navigable waterways.  In England, this principle evolved into the common law public trust doctrine: the king held all waterways and submerged lands, not for himself, but rather “as trustee of a public trust for the benefit of the people” for uses like commerce, boating, and fishing.

After the American Revolution, each of the original states succeeded to this sovereign right and duty.  Each became trustee of the tide and submerged lands within its boundaries for the common use of the people.  Subsequently admitted states, like California, have the same sovereign rights under the equal footing doctrine.   That is, title to lands under navigable waters is held by the state in trust for the public good.  These lands are not alienable, as the public’s interest in them cannot be extinguished.

II. Purpose of the Public Trust

The Supreme Court described the nature of a state’s title to its tide and submerged lands in 1892, and although courts have reviewed tidelands trust issues many times since then, the Court’s premise remains fundamentally unchanged: a state’s title to its tide and submerged lands is different from that to the lands it holds for sale.  “It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties.  Illinois Central R.R. Co. v Illinois (1892) 146 U.S. 387, 452.  In other words, the public trust is an affirmation of the duty of the state to protect the public’s common uses of its waterways.

Are what are these common uses?  Traditionally, public trust uses were limited to water-bourne commerce, navigation, and fishing.  In more recent years, however, the California Supreme Court has said that the public trust embraces the right of the public to use the navigable waters of the state for bathing, swimming, boating, and general recreational purposes.  It is flexible enough to accommodate changing public needs, such as the preservation of the lands in their natural state for scientific study, as open space and as wildlife habitat.  The administrator of the public trust “is not burdened with an outmoded classification favoring one mode of utilization over another.”

The state legislature, acting within the confines of the common law public trust doctrine, is the ultimate administrator of the trust and often may be the ultimate arbiter of permissible uses of trust lands.  All uses, including those specifically authorized by the Legislature, must take into account the overarching principle of the public trust doctrine that trust lands belong to the public and are to be used to promote public rather than exclusively private purposes.  For this reason, the legislature cannot commit trust lands to private development because it would be abdicating its duty as a trustee.   Within these confines, however, the legislature has considerable discretion.

 The legislature speaks to the issue of permissible uses when it assigns trust lands to local governments.  Statutory trust grants are not all the same–some authorize the construction of ports and airports, others allow only recreational uses and still others allow a broad range of uses.

A further and often complicating factor is that granted and ungranted lands already may have been developed for particular trust uses that are incompatible with other trust uses or may have become antiquated. Some tidelands have been dedicated exclusively to industrial port uses, for example, and in these areas, recreational uses, even if also authorized by the trust grant, may be incompatible.  Similarly, tidelands set aside for public beaches may not be suitable for construction of a cannery, even though a cannery may be an acceptable trust use.  Piers, wharves and warehouses that once served commercial

navigation but no longer can serve modern container shipping may have to be removed or converted to a more productive trust use.  Historic public trust uses may have been replaced by new technologies.  Antiquated structures on the waterfront may be an impediment rather than a magnet for public access and use of the waters.  Public trust uses may and often do

conflict with one another.  The state and local tidelands grantees, as administrators of their



10Illinois Central Railroad v. Illinois, supra, at 452-53.


respective public trust lands, are charged with choosing among these conflicting uses, with the Legislature as the ultimate arbiter of their choices.

For all these reasons, a list of uses or a list of cases without more may not be as useful as an analysis of public trust law applied to a specific factual situation.

III. The Leasing of Tidelands



A few principles established by the courts are instructive in analyzing under the public trust doctrine the leasing of public trust lands for particular uses.  For example, it was settled long ago that tidelands granted in trust to local entities may be leased and improved if the leases and improvements promote uses authorized by the statutory trust grant and the public trust.  Leases for the construction of wharves and warehouses and for

railroad uses, i.e., structures that directly promote port developme nt, were approved early in the 20th century.11   Later, leases for structures incidental to the promotion of port commerce, such as the Port of Oakland’s convention center, were held to be valid because although they did not directly support port business, they encouraged trade, shipping, and commercial associations to become familiar with the port and its assets.12   Visitor-serving facilities, such as restaurants, hotels, shops, and parking areas, were also approved as

appropriate uses because as places of public accommodation, they allow broad public





11San Pedro etc. R.R. Co. v. Hamilton (1911) 161 Cal. 610; Koyner v. Miner (1916) 172

Cal. 448; Oakland v. Larue Wharf & Warehouse Co. (1918) 179 Cal. 207; City of Oakland v. Williams (1929) 206 Cal. 315.


12Haggerty v. City of Oakland (1958) 161 Cal.App.2d 407, 413-414.


access to the tidelands and, therefore, enhance the public’s enjoyment of these lands historically set apart for their benefit.13

These cases provide three guidelines for achieving compliance with the public trust when leasing tidelands for construction of permanent structures to serve a lessee’s development project:  (1) the structure must directly promote uses authorized by the statutory trust grant and trust law generally, (2) the structure must be incidental to the promotion of such uses, or (3) the structure must accommodate or enhance the public’s enjoyment of the trust lands.  Nonetheless, when considering what constitutes a trust use, it is critical to keep in mind the following counsel from the California Supreme Court: The objective of the public trust is always evolving so that a trustee is not burdened with outmoded classifications favoring the original and traditional triad of commerce, navigation

and fisheries over those uses encompassing changing public needs.14












IV. Promotion of Trust Uses and Public Enjoyment of Trust Lands







13Id. at p. 414; Martin v. Smith (1960) 184 Cal.App.2d 571, 577-78.


14National Audubon Society v. Superior Court, supra, at p. 434.


Installations not directly connected with water-related commerce are appropriate trust uses when they must be located on, over or adjacent to water to accommodate or

foster commercial enterprises.  Examples include oil production facilities, freeway bridges and nuclear power plants.15   Hotels, restaurants, shops and parking areas are appropriate because they accommodate or enhance the public’s ability to enjoy tide and submerged lands and navigable waterways.  The tidelands trust is intended to promote rather than serve as an impediment to essential commercial services benefiting the people and the ability of the people to enjoy trust lands.16

Nevertheless, the essential trust pur poses have always been, and remain, water



related, and the essential obligation of the state is to manage the tidelands in order to implement and facilitate those trust purposes for all of the people of the state.17

Therefore, uses that do not accommodate, promote, foster or enhance the statewide public’s need for essential commercial services or their enjoyment tidelands are not appropriate uses for public trust lands.  These would include commercial installations that could as easily be sited on uplands and strictly local or “neighborhood-serving” uses that confer no significant benefit to Californians statewide.  Examples may include hospitals,

supermarkets, department stores, and local government buildings and private office




15See Boone v. Kingsbury (1928) 206 Cal.148, 183; Colberg, Inc. v. State of California ex rel. Dept. Pub. Work, supra, at pp. 421-22; and Carstens v. California Coastal Com. (1986) 182

Cal.App.3d 277, 289.


16Carstens v. California Coastal Com., supra, at p. 289.


buildings that serve general  rather than specifically trust-related functions.



V. Mixed-Use Developments






















































17Joseph L. Sax, AThe Public Trust in Stormy Western Waters,@ October 1997.


Mixed-use development proposals for filled and unfilled tide and submerged lands have generally consisted of several structures, including non-trust use structures or structures where only the ground floor contains a trust use.  While mixed-use developments on tidelands may provide a stable population base for the development, may draw the public to the development, or may yield the financing to pay for the trust uses to be included in the development, they ought not be approved as consistent with statutory trust grants and the public trust for these reasons.  These reasons simply make the development financially attractive to a developer.  Projects must have a connection to water-related activities that provide benefits to the public statewide, which is the hallmark of the public trust doctrine. Failure to achieve this goal, simply to make a development financially attractive, sacrifices public benefit for private or purely local advantage.  A mixed-use development may not be compatible with the public trust, not because it may contain some non-trust elements, but

because it promotes a “commercial enterprise unaffected by a public use”18  rather than


promoting, fostering, accommodating or enhancing a public trust use.19   That use, however, need not be restricted to the traditional triad of commerce, navigation and fishing.  It is an evolving use that is responsive to changing public needs for trust lands and for the benefits



18City of Long Beach v. Morse (1947) 31 Cal.2d 254, 261.


19Haggerty v. City of Oakland, supra, at pp. 413-14.


these lands provide.20


Moreover, commercial enterprises without a statewide public trust use may violate the terms of statutory trust grants.  Typically, grants allow tidelands to be leased, but only for purposes “consistent with the trust upon which said lands are held.”  This term is not equivalent to “not required for trust uses” or “not interfering with trust uses.”  Since leases of tidelands must be consistent with statutory trust grant purposes, leases which expressly contemplate the promotion of non-trust uses rather than trust uses would not comply with

the terms of the trust grants.




































20National Audubon Society v. Superior Court, supra, at p. 434.


For these reasons, non-trust uses on tidelands, whether considered separately or part of a mixed-use development, are not mitigable.  That is, unlike some environmental

contexts where developments with harmful impacts may be approved so long as the impacts are appropriately mitigated by the developer, in the tidelands trust context, mitigation of a non-trust use has never been recognized by the courts.  To the contrary, the California Supreme Court has said that just as the state is prohibited from selling its tidelands, it is similarly prohibited from freeing tidelands from the trust and dedicating them to other uses

while they remain useable for or susceptible of being used for water-related activities.21



VI.         Incidental Non-Trust Use

All structures built on tide and submerged lands should have as their main purpose the furtherance of a public trust use.  Any structure designed or used primarily for a non- trust purpose would be suspect.  Mixed-use development proposals, however, frequently justify non-trust uses as “incidental” to the entire project.  The only published case in California in which a non-trust use of tidelands has been allowed focused on the fact that the real or main purpose of the structure was a public trust use and that the non-trust use would be incidental to the main purpose of the structure.22   In this context, the court noted

that because the real or main purpose of the structure was to promote public trust uses, non- trust groups could also use the facility, but the non-trust uses must remain incidental to the





21Atwood v. Hammond (1935) 4 Cal.2d 31, 42-43.


22Haggerty v. City of Oakland, supra, at p. 413.


main purpose of the structure.23   This is the state of the law, and it is supported by good policy reasons as well.  If the test for whether a non-trust use i s incidental to the main purpose of a development were not applied on a structure-by-structure basis, pressure for more dense coastal development may increase as developers seek to maximize the square feet of allowable non-trust uses.  Disputes may arise as to how to calculate the square footage attributable to the proper trust uses versus non-trust uses, with open waterways and

parking garages likely being the dominant trust uses and structures being devoted to non- trust uses.

It is beyond contention that the state cannot grant tidelands free of the trust merely because the grant serves some public purpose, such as increasing tax revenues or because the grantee might put the property to a commercial use.24   The same reasoning applies to putting tidelands to enduring non-trust uses by building structures on them.  Accordingly, the only enduring non-trust uses that may be made of tidelands without specific legislative authorization are those incidental to the main trust purpose applied on a structure-by- structure basis.  Each structure in a mixed-use development on tidelands must have as its primary purpose an appropriate public trust use.  If its real or main purpose is a trust use, portions of the structure not needed for trust purposes may be leased temporarily to non- trust tenants, provided that the non-trust use is incidental to the main purpose of the







VII. The Role of the Legislature



The Legislature is the representative of all the people and, subject to judicial review, is the ultimate arbiter of uses to which public trust lands may be put.  The Legislature may create, alter, amend, modify, or revoke a trust grant so that the tidelands are administered in a manner most suitable to the needs of the people of the state.25   The Legislature has the power to authorize the non-trust use of tidelands.  It has done so rarely, and then on a case- specific basis.26   Many of its actions have been a recognition of incidental non-trust uses or of a use that must be located on the tidelands. When these legislative actions have been challenged in court, the courts, understandably, have been very deferential, upholding the actions and the findings supporting them.27

The Legislature has provided a statutory framework for the leasing of tidelands for

non-trust uses by the cities of Long Beach and San Francisco grounded on findings that the tidelands are not required for (San Francisco) or not required for and will not interfere








24National Audubon Society v. Superior Court, supra, at p. 440.


25City of Coronado v. San Diego Unified Port District (1964) 227 Cal.App.2d 455, 474.


26For example, in Chapter 728, Statutes of 1994, the Legislature authorized tidelands in

Newport Beach to continue to be put to non-trust uses for a limited term after it was determined that the tidelands had been erroneously characterized and treated as uplands by the city due to incorrect placement of the tidelands boundary.


27See, e.g., Boone v. Kingsbury, supra, at p. 183 and City of Coronado v. San Diego

Unified Port District, supra, at pp. 474-75; but see Mallon v. City of Long Beach (1955) 44

Cal.2d 199, 206-07, 212.


with (Long Beach) the uses and purposes of the granting statute.28   Where, as in these two statutes, the Legislature has authorized in general terms the use of tidelands for non-trust purposes, the statutes’ provisions must be interpreted so as to be consistent with the paramount rights of commerce, navigation, fishery, recreation and environmental protection.  This means that the tidelands may be devoted to purposes unrelated to the common law public trust to the extent that these purposes are incidental to and

accommodate projects that must be located on, over or adjacent to the tidelands.  These non-trust uses are not unlimited, for there are limits on the Legislature’s authority to free tidelands from trust use restrictions.29

To ensure that the exercise of the Long Beach and San Francisco statutes is



consistent with the common law public trust, the tidelands to be leased for non-trust uses must have been filled and reclaimed and no longer be tidelands or submerged lands and must be leased for a limited term. The space occupied by the non-trust use, whether measured by the percentage of the land area or the percentage of the structure, should be relatively small. Finally, any structure with a non-trust use should be compatible with the overall project. Findings such as these are necessary because legislative authorizations to devote substantial portions of tidelands to long-term non-trust uses have generally been considered by the






28Ch. 1560, Stats. 1959; Ch. 422, Stats. 1975. These statutes also provide for, inter alia, the lease revenues to be used to further trust uses and purposes.


29Illinois Central R.R. Co. v. Illinois, supra, at pp. 452-54.


courts as tantamount to alienation.30



In several out-of-state cases, specific, express legislative authorizations of



incidental leasing of publicly-financed office building space to private tenants solely for the purpose of producing revenue have been subject to close judicial scrutiny, although they did not involve tidelands trust use restrictions.31   One case involved construction of an international trade center at Baltimore’s Inner Harbor with public financing where

legislation expressly permitted portions of the structure to be leased to private tenants for the production of income.  Another was a condemnation case where the statute authorizing the New York Port Authority to acquire a site on which to build the World Trade Center was challenged on the basis that it allowed portions of the new structure to be used for no other purpose than the raising of revenue.   In both cases, opponents of the projects argued that a publicly financed office building should not be permitted to have any private commercial tenants even though the respective legislatures had expressly allowed incidental private use of each building.  The state courts in both Maryland and New York held that so long as the primary purpose of the office building was for maritime purposes connected with the port,

legislation authorizing the leasing to private tenants was valid.32   Although both cases



involve challenges to financing and condemnation statutes and do not involve the public




30Atwood v. Hammond, supra, at p. 42; see also Illinois Central R.R. Co. v. Illinois, supra,

at pp. 454-53.


31Lerch v. Maryland Port Authority (1965) 240 Md. 438; Courtesy Sandwich Shop, Inc. v. Port of New York Authority (1963) 12 N.Y.2d 379.




trust, they are instructive because they demonstrate the importance to the courts, even in



the context of public financing and condemnation, that when a portion of a structure is to be leased for the purpose of raising revenues to offset expenses, this incidental non-public leasing must have been legislatively authorized.

VIII. Exchanges of Lands



Situations where a local government or a private party acquires a right to use former trust property free of trust restrictions are r are.33   In order for such a right to be valid, the Legislature must have intended to grant the right free of the trust and the grant must serve the purpose of the trust.  Public Resources Code section 6307 is an example of the rare situation where abandonment of the public trust is consistent with the purposes of the trust. Section 6307 authorizes the Commission to exchange lands of equal value, whether filled or unfilled, whenever it finds that it is “in the best interests of the state, for the improvement of navigation, aid in reclamation, for flood control protection, or to enhance the configuration of the shoreline for the improvement of the water and upland, on

navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits, and that it will not substantially interfere with the right of navigation and fishing in the waters involved.” The lands exchanged may be improved, filled and reclaimed by the grantee, and upon adoption by the Commission of a resolution finding that such lands (1) have been improved, filled, and

reclaimed, and (2) have thereby been excluded from the public channels and are no longer





33National Audubon Society v. Superior Court, supra, at p. 440.


available or useful or susceptible of being used for navigation and fishing, and (3) are no longer in fact tidelands and submerged lands, the lands are thereupon free from the public trust.  The grantee may thereafter make any use of the lands, free of trust restrictions.

In order for such an exchange of lands to take place, the Commission must find that the lands to be exchanged are no longer available or useful or susceptible of being used for navigation and fishing, taking into consideration whether adjacent lands remaining subject to the trust are sufficient for public access and future trust needs; that non-trust use of the

lands to be freed of the public trust will not interfere with the public’s use of adjacent trust lands; and that the lands that will be received by the state in the exchange not only are of equal, or greater, monetary value but also have value to the tidelands trust, since they will take on the status of public trust lands after the exchange.  Only then can the Commission find that the transaction is in the best interests of the state, that the exchange of lands will promote the public trust and that it will not result in any substantial interference with the public interest in the lands and waters remaining.

Knox Out!

After 11 hours of deliberation, an Italian jury overturned the conviction of Amanda Knox and Raffaele Sollecito in the murder of Meredith Kircher, Knox’s former roommate.  Knox testified in her own defense in the appeal (which is allowed in Italy; the appellate court can revisit the facts). She told the eight-member jury, in Italian, “I’m not a promiscuous vamp. I’m not violent … I have not killed, I have not raped, I was not there, I was not present.”

Congratulations to Knox, who is now free to sell the movie rights.

The Interested Game

In the wake of the Black Sox scandal of 1919, Major League Baseball appointed a federal district judge, Kennesaw Mountain Landis, to head the new Office of the Commissioner.  Landis demanded, successfully, a revision of the league constitution giving the Commissioner nearly absolute power over the league’s affairs, subject to a single limitation: that the Commissioner act only “in the best interests of the game.”  Part legislative, part judicial, his decisions were “the supreme law of the game.”  In a sense, the powers and responsibilities of the Commissioner of Baseball became like those of a Supreme Court justice.   Commissioners and Justices both make inherently difficult, controversial, and value-driven decisions at high levels of abstraction, and both interpret and modify the rules to preserve their institutions’ core values, like fair play and due process. In particular, both Justices and Commissioners (1) provide guidance, (2) refrain from error correction, (3) undertake rulemaking, (4) exercise countermajoritarian powers, (5) explain their decisions, (6) protect the fundamental values of their respective institutions, (7) employ special masters for fact-finding, (8) decide on statutes of limitations, and (9) exercise finality.  Here are just a few paradigm illustrations of these similarities, matching a Court decision with a comparable action by the Commissioner of Baseball.

1. Providing Guidance: Chevron and the Strike Zone

Both Justices and Commissioners are tasked with providing interpretive guidance to their subordinates. At their cores, the jobs of both Justices and Commissioners are to ensure the proper interpretation of rules. This common structural role can be observed in the Court’s landmark administrative law decision, Chevron v. Natural Resources Defense Council, and the Commissioner’s long history of regulating interpretation of the strike zone.

In Chevron, the Supreme Court provided guidance to subordinate judges regarding the appropriate standard of review that should be applied to an agency interpretation of a statute that it administers. In adopting a default rule of substantial deference, the Court held that “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron and its progeny provided an approach for how to interpret agency statutes, allowing fora virtually unfettered range of acceptable actions in the agency’s “strike zone”—any actions that are substantiated by a “permissible construction” of the governing statute. Thus, the Supreme Court did not define the exact boundaries of agency authority in Chevron but provided guidance for how lower courts should assess administrative actions.

Similarly, the Commissioner of Baseball has long grappled with providing the proper interpretive guidance to umpires regarding calling balls and strikes. On their face, the Major League Rules define the strike zone clearly:

The strike zone is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap. The Strike Zone shall be determined from the batter’s stance as the batter is prepared to swing at a pitched ball.

Yet enforcement of the strike zone has been a controversial issue: umpires have often declined to follow the official rules and, in particular, have not called high strikes. In 2001, seeking to speed up the pace of the game and help pitchers, current Commissioner Allan “Bud” Selig instructed that umpires more strictly enforce the strike zone as written, resulting in more strikes being called. In taking action in this manner, Selig did not alter the rulebook; instead, he provided guidance to subordinates on how existing rules should be interpreted.

2. Refraining from Error Correction: Magnum Import Co. v. Coty and Armando Galarraga

Just as Justices and Commissioners provide interpretive guidance, so too do they generally refrain from correcting individual errors. This similarity between these two offices is evident in the Court’s decision inMagnum Import Co. v. Coty, where the Court explicitly described its guidance function, and in Commissioner Bud Selig’s 2010 decision to leave intact umpire Jim Joyce’s blown call, which robbed Armando Galarraga of a perfect game.

The Supreme Court is not in the error-correction business. Supreme Court Rule 10 states that “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.” In Magnum Import Co. v. Cotybaseball’s greatest Justice (and one-time candidate for Commissioner), Chief Justice William Howard Taft, declared for the majority:

The jurisdiction to bring up cases by certiorari from the Circuit Courts of Appeals was given . . . to bring up cases involving questions of importance which it is in the public interest to have decided by this Court of last resort. The jurisdiction was not conferred upon this Court merely to give the defeated party in the Circuit Court of Appeals another hearing.

There are sound reasons for this policy. The Court “position[s] itself as a source of structure, guidance, and uniformity, not as a traditional court of appeals that reviews the correctness of lower court opinions.” It does so to keep its docket under control and to ensure that it considers cases only after they have received careful review by multiple lower courts. Justice Breyer has described this structural feature of the Court: “[T]he Supreme Court does not generally determine whether the lower courts have correctly disposed of a particular case. . . . Rather than correcting errors, then, the Supreme Court is charged with providing a uniform rule of federal law in areas that require one.”

Similarly, the Commissioner of Baseball does not review the on-field calls of umpires for error; rather, he provides general guidance to the umpires on how to interpret the rules. For example, consider the case of Armando Galarraga. On June 2, 2010, Galarraga took the mound for the Detroit Tigers. Through eight and two-thirds innings, Galarraga was pitching a perfect game (twenty-six up, twenty-six down). Had Galarraga gotten the last batter out, he would have been the twenty-first pitcher in Major League history to throw a perfect game.The twenty-seventh batter, Cleveland Indians shortstop Jason Donald, hit a grounder down the first base line. Tigers first baseman Miguel Cabrera left the bag to field the grounder, and Galarraga ran to cover first base. Cabrera’s throw to Galarraga easily beat the runner to first, and thus he should have been called out. Instead,first base umpire Jim Joyce erroneously called the runner safe, ending Galarraga’s perfect game.

Upon viewing the video replay, Joyce immediately realized that he had made the wrong call, lamenting that “I had a great angle, and I missed the call,” and that “I just cost that kid a perfect game.” Unfortunately, there was nothing Joyce could do to remedy the situation; the official record showed Galarraga’s game as near-perfect, having retired twenty-six batters in a row. Inside and outside of baseball, many observers were unhappy with Joyce’s call. However, the final decision on whether to reverse Joyce’s call rested with Commissioner Selig.

In the days following the game, the Commissioner actively considered reversing Joyce’s call and awarding Galarraga a perfect game. In the end, Selig declined to reverse the single error in the application of settled law, but he contemplated a larger systemic change to Major League Baseball’s policy about instant replay:

[T]here is no dispute that last night’s game should have ended differently. While the human element has always been an integral part of baseball, it is vital that mistakes on the field be addressed. Given last night’s call and other recent events, I will examine our umpiring system, the expanded use of instant replay and all other related features.

The Commissioner’s message was clear: even though Joyce had clearly erred in applying a settled rule (by awarding Donald a base to which he was not entitled), the Commissioner’s job, like that of a Supreme Court Justice, is not error correction.

3. Rulemaking: Miranda v. Arizona and Harvey Haddix

The Commissioner and the Court also share the structural responsibility for rulemaking in their respective systems. A classic instance of this rulemaking power in the Supreme Court was its decision on police interrogation in Miranda v. Arizona. As for the Commissioner, a comparable instance of rulemaking was the Commissioner’s reconsideration of the definition of a perfect game in the case of Harvey Haddix. In both instances, to quote Judge Posner, the Supreme Court and the Commissioner “chang[ed] the rules” of their respective games.

In Miranda, the Court ruled that evidence obtained from a suspect in police custody is not admissible in the courts, unless the suspect is informed of his right to counsel and right against self-incrimination and then makes a voluntary waiver of his rights. The Court threw out Ernesto Miranda’s conviction not as a misapplication of settled law but because the lack of warnings violated his right to Due Process. In changing the Fifth Amendment rules, the Court discarded the old “totality of circumstances” test. The Miranda Court instead set new standards for the lower courts in terms of admissibility and dictated constitutionally mandated procedures for police interrogations of criminal suspects. Miranda did not “merely” grant the appellant “another hearing;” it was an instance of the Court promulgating new rules for a large set of cases in the lower courts.

Similarly, in 1991, Commissioner Vincent convened a “Committee for Statistical Accuracy” to create rules for determining authoritatively what constitutes a perfect game. The Committee decided that a perfect game should require both “at least nine innings” and that “no batter reach[] any base during the course of the game.” As a result, Harvey Haddix’s 1959 game, where he pitched twelve perfect innings before yielding a hit, was retroactively declassified as a perfect game, since Haddix had given up a hit in the thirteenth inning. The cases of both Miranda and Haddix suggest that neither the Commissioner nor the Supreme Court, in Justice Breyer’s words, is generally engaged in “correcting errors . . . [but] is charged with providing a uniform rule.”

4. Countermajoritarianism: Brown v. Board of Education and Jackie Robinson

Both the Court and the Commissioner have a mixed record with respect to racial integration. The Court’s nadir came in its decision upholding the “separate but equal” doctrine in Plessy v. Ferguson. For the Office of the Commissioner, the low point was Kenesaw Mountain Landis’s strong resistance to integration and strong support for racially segregated leagues. However, both institutions ultimately vindicated themselves in landmark events: the repudiation of “separate but equal” in Brown v. Board of Education, and the signing of Jackie Robinson to play for the Brooklyn Dodgers.

At first, both the Court and the Commissioner hid behind the fallacy of “separate but equal.” In Plessy, the Court identified “the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority.” In other words, separate couldbe equal. For baseball, the equivalent argument for separate leagues was that “players of both races have been permitted to develop in their own environments and rise to the heights of stardom within their own circles.”

In upholding racial segregation, the Court was more frank about its actions than was the Commissioner. While the Court was explicit about its embrace of separate but equal, Landis was duplicitous. He publicly claimed that“Negroes are not barred from organized baseball by the commissioner and no rule forbids their entry.” In private, however, he was more candid, telling owner Bill Veeck that he would “invalidate any contract [Veeck] made with a black player and, for conduct detrimental to the game, he would bar Veeck from organized baseball for life if he hired one.” Thus, in reality, the Commissioner, like the Court, acted as the structural bulwark of “separate but equal” within his institution.

Just as the Court and the Commissioner both grievously erred by supporting segregation, so too were they subsequently at the vanguard of ending the practice. In so doing, both the Court and the Commissioner took countermajoritarian actions with long-lasting social impact. Both national institutions strongly confirmed the values of nondiscrimination and equality and thereby made important contributions to the civil rights movement. And there is yet another parallel: the military’s experience with nondiscrimination played a critical role in the decisions of the Court and the Commissioner to desegregate.

In Brown v. Board of Education, the Court famously declared that “separate educational facilities are inherently unequal.” In so doing, the Brown Court unanimously overturned laws that were, in many states, strongly supported by the public. At the time Brown was decided, the U.S. military had already been integrated byPresident Harry Truman’s 1948 Executive Order. Truman’s Order strongly encouraged popular acceptance of integration prior to the Brown decision and was cited by amici in Brown who supported desegregation. And, as some scholars have argued, military desegregation had a strong impact on the Court’s decision to hold separate-but-equal schooling unconstitutional.

Seven years before Brown, Major League Baseball broke its own color wall. In 1947, Jackie Robinson joined the Brooklyn Dodgers as the first black major leaguer of modern times. Some commentators have attributed as much or more long-term social significance to Robinson’s breaking the color barrier than to the Brown decision.And it was Commissioner Happy Chandler who proved pivotal in the integration of Baseball. Whereas Landis had supported the “separate but equal” status of the Negro Leagues, Chandler came to support racial integration of Baseball strongly, even against the will of the majority of the owners.

Just as the military’s integration provided an impetus for the Court’s decision in Brown, Chandler pointed to the military as a leading reason to favor integration on the playing field. Although Truman had not yet ordered the military desegregated at the time Robinson joined the Dodgers, Chandler was aware that white and black units fought alongside each other effectively in World War II. As Chandler put it, “If they can fight and die on Okinawa, Guadalcanal, [and] in the South Pacific, they can play baseball in America.” The parallel cases ofBrown and Robinson demonstrate that, as protectors of the fundamental values of their respective systems, both Justices and Commissioners must sometimes take unpopular countermajoritarian action in order to advance the evolving core values of their institutions.

5. Providing Explanations: Boumediene v. Bush and Giamatti’s 1988 Statement

Both Supreme Court Justice and Baseball Commissioner do more than make decisions: they explain themselves to the larger public. Consider, for example, the Court’s landmark decision in Boumediene v. Bush, in which a divided Court held that the constitutional protections of habeas corpus extend to detainees held at Guantanamo Bay. The Boumediene majority discussed the “history and origins of the writ,” and Justice Souter noted the role of the writ as “something of value both to prisoners and to the Nation.” The majority emphasized the lack of assistance of counsel for detainees and their consequent deprivation of a voice in the process against them. In response, Justice Scalia in dissent crafted a competing historical narrative and contextualized the decision as one that would “cause more Americans to be killed.” In Boumediene, both the majority and the dissent exercised their explanatory functions, placing their respective opinions in the context of a larger narrative.

Baseball Commissioners play a similar role in explaining their decisions to the public by situating such decisions in the context of the “national pastime” and its values. For instance, when Commissioner Giamatti banned baseball’s all-time hits leader, Pete Rose, for gambling, Giamatti issued a detailed statement to the American public, explaining the reasons for his decision. Giamatti placed the Rose case in historical context, declaring that“there had not been such grave allegations since the time of Landis.” He discussed Major League Baseball’s obligation to its “fans and well-wishers.” Like the Boumediene Court, Commissioner Giamatti took his explanatory role seriously, seeing the “sorry” Rose case as an opportunity to discuss the core values for which baseball stands.

6. Due Process and Best Interests: Roe and Rose

Both the Supreme Court and the Commissioner are tasked not only with explaining the fundamental values of their respective systems, but also with protecting those core values. For the Supreme Court Justice, this often means protecting the “due process of law”; for the Commissioner, this means protecting the “best interests of baseball.” Commissioner Fay Vincent described the structural similarities between the Due Process and Best Interest Clauses:

The best interests of the game . . . . It’s like “due process” or any other of the wonderful statements that govern our lives. I mean, what does due process mean? The fourteenth amendment has a huge affect [sic] on our daily life. And the same thing is true with phrases like “the best interests.” The wonderful thing about the “best interests” is that it is not susceptible to easy definition, and it was written by Landis, to generate authority for his ability to make rulings that he thought were [just].

Interpretation of both the Due Process Clause and the Best Interests Clause can be controversial. Such controversy is unsurprising, since, in exercising the Due Process and Best Interests powers, the Court and the Commissioner claim to speak for the deepest values of the system. When others do not share such values or disagree about the appropriate application of those values, the response is typically strong and heartfelt.


Consider Roe v. Wade. In Roe, the Supreme Court famously declared that “[a] state criminal abortion statute . . . that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.” The Court did not invoke the Due Process Clause lightly, noting that it was limited to “only [those] personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’”

Commissioner Giamatti similarly protected Major League Baseball’s deepest values in the Pete Rose incident by invoking the Best Interests Clause. Rose had been accused of gambling on Baseball. In response, Giamatti permanently banned Rose from Baseball (with the potential for reinstatement at a later time). Giamatti based his decision to ban Rose on the Best Interests Clause, to “protect[] the integrity of the game of baseball—that is, the game’s authenticity, honesty and coherence.” Giamatti invoked the Best Interests Clause to preserve the core foundations of the game. In Giamatti’s words,

I believe baseball is an important, enduring American institution. It must assert and aspire to the highest principles—of integrity, of professionalism of performance, of fair play within its rules. It will come as no surprise that like any institution composed of human beings, this institution will not always fulfill its highest aspirations. I know of no earthly institution that does. But this one, because it is so much a part of our history as a people and because it has such a purchase on our national soul, has an obligation to the people for whom it is played—to its fans and well-wishers—to strive for excellence in all things and to promote the highest ideals.

For Giamatti, the Best Interests Clause served the same structural purpose in the Rose incident as the Due Process Clause did in Roe: to safeguard the “fundamental” principles of the institution he was duty-bound to protect.

Unsurprisingly, invoking such a structural power in such contexts does not come without controversy. The phenomenon of Roe Rage” is well known. Similarly, much ink has been spilled debating whether Giamatti appropriately exercised his powers in banishing Rose—what one might call ‘Rose Rage.’ The invocation of either Clause is strong medicine; the structural interpretation of “fundamental” values can land Justice or Commissioner in a pickle. However, protecting the basic values of their respective systems is at the core of their roles.

7. Special Masters: The Ellis Island Case and the Dowd Report

Though the Commissioner and the Court generally seek to provide guidance to lower courts on questions of law, their original jurisdictions sometimes necessitate fact-intensive inquiries. Nevertheless, the Commissioner and the Supreme Court are both ill-suited for the task of factfinding. Consequently, both rely on special masters to engage in factfinding for them. Particularly instructive is a comparison of the Court’s use of a special master ina dispute over Ellis Island with the Commissioner’s use of a special master to investigate allegations of gambling.

In 1993, New Jersey sued New York before the Supreme Court, contesting the ownership of Ellis Island. Rather than engage in the time-consuming process of factfinding, the Court appointed Paul Verkuil as a special master, granting him

authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Special Master is directed to submit such reports as he may deem appropriate.

The Court’s appointment of a special master was not unusual; indeed, the Supreme Court’s “appointment of Special Masters in original jurisdiction cases [is] standard practice.” In these cases, the Court grants substantial deference to the Special Master’s findings but does not surrender judicial control. As the Court declared in an earlier case, “Though the Master’s findings on these issues deserve respect and a tacit presumption of correctness, the ultimate responsibility for deciding what are correct findings of fact remains with us.”

Pursuant to the Court’s order, Special Master Verkuil conducted his hearings and submitted a report to the Court summarizing over four thousand pages of trial record. Verkuil’s report ultimately determined that “New York’s sovereign authority was limited to the original area of the Island . . . which he pegged to the mean low-water mark of the original Island.” After hearing oral argument, the Supreme Court upheld the Special Master’s findings with the exception of a “miniscule detail.”

Like the Supreme Court in The Ellis Island Case, Commissioner Giamatti appointed a special master in the Pete Rose case, a procedure later followed by Commissioner Selig when he appointed Senator Mitchell to investigate allegations of steroid use. Instead of conducting a factual inquiry himself, the Commissioner recognized that“[t]o pretend that serious charges of any kind can be responsibly examined by a Commissioner alone fails to recognize the necessity to bring professionalism and fairness to any examination.” Thus, the Commissioner engaged John Dowd, a former Department of Justice prosecutor, “to investigate these and any other allegations that might arise and to pursue the truth wherever it took him.” Giamatti explained that “such a process, whereby an experienced professional inquires on behalf of the Commissioner as the Commissioner’s agent, is fair and appropriate.”

Dowd produced a 225-page report with eight volumes of exhibits, concluding that Rose had, in fact, gambled on Major League Baseball games. Giamatti scheduled a hearing to review Dowd’s report with Rose, just as the Supreme Court had reviewed Verkuil’s report, but Rose declined to attend. Giamatti then banned Rose from Baseball and issued a public statement explaining his actions.

Like the Supreme Court in The Ellis Island Case, the Commissioner recognized the impediments to personally undertaking a fact-intensive inquiry in the exercise of his original jurisdiction. Furthermore, like the Court, the Commissioner did not accept automatically the report of his special master. Rather, attempting to promote “a process that . . . embodies integrity and fairness,” the Commissioner gave the accused an opportunity to contest the special master’s findings.

8. Statutes of Limitations: Ledbetter v. Goodyear and the Chalmers Trophy

Deciding when the statute of limitations has run is a fundamental task of Justices and Commissioners, as they decide who can seek redress before them. This Section compares the Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., where the Court interpreted the statute of limitations applicable to Title VII of the Civil Rights Act, with Commissioner Kuhn’s 1981 decision to leave undisturbed Ty Cobb’s hit record, thereby confirming the outcome of the 1910 Chalmers Trophy race.

Lilly Ledbetter was a Goodyear Tire employee from 1979 to 1998. After retiring, Ledbetter commenced a Title VII pay discrimination claim, arguing that

during the course of her employment several supervisors had given her poor evaluations because of her sex, that as a result of these evaluations her pay was not increased as much as it would have been if she had been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout her employment.

The District Court allowed Ledbetter’s claim to proceed, and the jury found in her favor. On appeal, Goodyear maintained that Ledbetter’s “claim was time barred with respect to all pay decisions made prior to September 26, 1997,” because Title VII’s statute of limitations barred actions not filed within 180 days “after the alleged unlawful employment practice occurred.” In response, Ledbetter argued that her pay within the last 180 days of her employment was lower as a “result of intentionally discriminatory pay decisions that occurred outside the limitations period,” and therefore her pay “was unlawful because it ‘carried forward’ the effects of prior, uncharged discrimination decisions.”

In a 5-4 decision, the Court rejected Ledbetter’s argument and held that “[t]he . . . charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Justice Ginsburg, in dissent, argued that Lebdetter had no way of knowing that discrimination was taking place since “[p]ay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time.” The Court’s decision was clear: even if the violation was unknown (and functionally unknowable) at the time the violation occurred, the statute of limitations still applied.

Commissioner Kuhn faced a similar issue when he decided to leave intact the outcome of the heated 1910 batting title even though new evidence had come to light that was not available at the time the title had been awarded. In deciding to affirm the outcome of the “Chalmers Race,” Kuhn “essentially said the statute of limitations had lapsed,” even though new, previously unknown evidence had surfaced.

The 1910 season began with two new baseball milestones: President Taft started a tradition of Chief Executives throwing the first pitch of the season, and car executive Hugh Chalmers promised that he would give a new car to whomever had the highest batting average at the season’s end. “The Great American Automobile Race”seized the public’s attention. Over the course of the season, the batting average lead went back and forth between Detroit’s outfielder, Ty Cobb, and Cleveland’s second baseman, Nap Lajoie.

With two games remaining in the season, Cobb decided to rest on his lead, citing a “flare up in his vision problems,” but the fans believed that Cobb was trying to coast to victory by sitting out the last two games.Cobb’s plan seemed destined to work. The outlook wasn’t brilliant for Lajoie that day: he would need a hit every time he came up to bat in his final two games, an October 9th doubleheader against the Browns. In his first at bat, Lajoie hit a triple off the center field wall. In his next at bat, Lajoie bunted and made it safely to first. His next time up, Lajoie bunted again. “And again. And again. And again and again and again.” In all, Lajoie bunted safely seven times. This was anomalous, to say the least, since “[t]hen as now players might go an entire season without logging seven bunt singles.” Many in the press complained that the Browns had been complicit in defrauding Cobb of his title. Nevertheless, it appeared Lajoie had won: he had batted .384 to Cobb’s .383.

Ban Johnson, President of the American League, was “irate” when he heard what had transpired. He ordered his statistician to go back and recheck all of the data. Amazingly enough, the statistician found that “[t]he Tigers had played a doubleheader on Sept. 24, yet the league statistician only recorded the first game,” and “Cobb had gone 2 for 3 in that missing game,” enough to put him ahead of Lajoie for the batting crown. Johnson declared that he would “‘certify . . . that Cobb has a clear title to the leadership of the American League batsmen for 1910 and is therefore entitled to the Chalmers trophy.’” (Chalmers, for his part, gave both of the ballplayers cars.)

From 1910 to 1981, the Chalmers race, Cobb’s self-benching, and Lajoie’s seven bunts were largely forgotten. Then, in 1981, the Sporting News reported that Cobb’s “lost” game, contrary to the statistician’s finding, had actually been recorded in the first place. Lajoie was the true winner of the Chalmers trophy after all. Cobb did not, in fact, have the all-time record of nine straight batting titles. Nor did Cobb’s all-time hit record stand at 4,191; Pete Rose needed only 4,189 to break it.

Faced with this new evidence seventy years later, Commissioner Bowie Kuhn had to decide whether to award the 1910 batting title to Lajoie retroactively and to take away two of Cobb’s record number of hits. Ultimately, Kuhn elected to leave the record books intact. Kuhn faced a statute of limitations question similar to the issue that confronted the Ledbetter Court: long after the initial event, information had come to light that, had it been known at the time, would have led to a different outcome. Both the Commissioner and the Supreme Court decided that the statute of limitations had lapsed, that some issues were beyond their control, and thus that there was nothing that could be done to help the aggrieved party.

9. Finality: Bush v. Gore and the 2002 All-Star Game

Both Justices and Commissioners have the power of finality within their respective systems. As Justice Jackson put it, “[w]e are not final because we are infallible, but we are infallible only because we are final.” Likewise, when he assumed the Office of the Commissioner, Landis “made clear the necessity of having the final word,” reminding the owners that “[y]ou have told the world that my powers are to be absolute.”

The power of finality is most controversial when it is perceived to have been exercised prematurely, truncating a legitimate process. In December 2000, the Supreme Court ended the Florida recount with its decision in Bush v. Gore. Unsurprisingly, this exercise of finality was met with strong criticism. Many turned to sports analogies to describe what Professor Laurence Tribe called the Court’s “ending the game before the matter could reach Congress.” Nevertheless, the Supreme Court’s power of finality carried the day: the decision in Bush v. Goreended over seven weeks of legal fighting regarding the presidential election outcome.

Similarly, the Commissioner’s use of the power of finality was exercised in controversial fashion when the Commissioner appeared literally to end a game too early: the 2002 All-Star Game. After eleven innings, the AL and NL Teams were tied 7-7 and were both down to the last pitchers on their rosters. Facing the prospect that no team would have any remaining pitchers, Commissioner Selig ordered that the game be declared a “tie” at the close of the eleventh inning if neither team had the lead. Selig’s decision to end the game was not well received by fans: they started chanting “let them play” and “refund” and threw beer bottles onto the field.Nevertheless, Selig’s decision as Commissioner was final: the Game was over, and no appeal was possible.Justices and Commissioners are not final because they are infallible; they are infallible because they are final.

Pirates May Not Be Pirates

The Fourth Circuit heard arguments today in United States v. Abdi Dire, an appeal of the first piracy conviction in a U.S. courtroom in nearly 200 years.  Kevin Walsh has an excellent synopsis of the oral arguments, available here.  The defendants, five Somali pirates, were convicted for their attack on the U.S.S. Nicholas in in April, 2010.  The Nicholas was in the Indian Ocean north of the Seychelles Islands.  Three pirates approached in a skiff, fired rocket-propelled grenades in the air and raked the ship with AK-47 fire, but did not board the ship. No sailors were injured in the attack.

In short, the pirates’  position is that their actions did not constitute piracy, in the legal sense, because they did not board the ship or rob it.  They argued that the Supreme Court has been clear about a key element of piracy: “It is robbery at sea.” But the government said Congress has embraced a broader definition of piracy based on international policy and a common understanding of the term.  Under the government’s definition, piracy includes “violent attacks on the high seas” and does not require actual robbery.

The Nicholas was part of an international flotilla combating piracy in the seas off Africa.  The Somalis mistook it for a merchant ship because the Navy used a lighting array to disguise the 453-foot warship and attract pirates.  The pirates also argued that they were not read their Miranda rights once they were captured by the crew of the Nicholas.

The Nicholas ruling could have an impact beyond that case. Last August, a judge in Norfolk dismissed piracy counts against five defendants accused in an attack on another Navy ship, the USS Ashland. In attack on the Ashland, a 610-foot dock landing ship, the ship’s 25mm cannons destroyed a skiff, killing one Somali man and injuring several others.  The judge concluded that since the men had not taken control or robbed the ship their actions did not rise to the nearly 200-year-old U.S. Supreme Court definition of piracy.  The government appealed the Ashland ruling, but the Fourth Circuit set that aside until they heard the  Nicholas case.  The last U.S. conviction for piracy was in 1819, and involved a foreign vessel. U.S. piracy law was based on that case.



Eleventh Circuit Rules for Spain in Shipwreck Treasure Case

In 2007, a band of American explorers recovered 17 tons of gold coins from a sunken Spanish galleon off the coast of ——.  Today, the Eleventh Circuit ruled that the men surrender the treasure to Spain.  For the opinion, go here.

Open season on the underwolves

On August 25, 2011, the Ninth Circuit denied an emergency motion for an injunction pending appeal to re-instate Endangered Species Act protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. For the order, go here. Environmental groups appealed the case to the Ninth Circuit on August 13, after a federal district court upheld legislation directing the U.S. Fish & Wildlife Service to reissue a 2009 rule that removed ESA restrictions on the gray wolf.  Decision here. The same rule was determined by a district court to be illegal in 2010, here.

The environmental groups asserted, among other things, that the legislation violated separation-of-powers doctrine because Congress had ordered an outcome in ongoing litigation without amending the underlying law, thereby blocking judicial review. Brief here.  The Service asserted that the environmental groups were not likely to succeed on the merits given controlling case law, and that no evidence had been produced showing that the viability of the gray wolf population would be irreparably harmed by the transfer of management authority over the wolves to the states. Opposition brief here.

The Court set an expedited briefing schedule for the merits of the appeal, and expects to hear the case in November 2011. In the meantime, Idaho opened its wolf-hunting season on August 30, 2011 and Montana is scheduled to open its season on September 30, 2011.

Court v. ACA

The Supreme Court appears headed for its most dramatic foray into partisan politics since Bush v. Gore. Challenges to President Obama’s health care law have started to work their way toward the Court and have been sustained by two Republican-appointed district judges.

The constitutional objections are silly. However, because constitutional law is abstract and technical and because almost no one reads Supreme Court opinions, the conservative majority on the Court may feel emboldened to adopt these silly objections in order to crush the most important progressive legislation in decades. One lesson of Bush v. Gore, which did no harm at all to the Court’s prestige in the eyes of the public,is that if there are any limits to the Justices’ power, those limits are political: absent a likelihood of public outrage, they can do anything they want. So the fate of health care reform may depend on the constitutional issues being understood at least well enough for shame to have some effect on the Court.

The Patient Protection and Affordable Care Act (PPACA) includes a so-called “individual mandate,” which is actually a tax that must be paid by individuals who fail to meet a minimum level of health insurance coverage.This mandate is the focus of challenges to the law. Without the mandate, the law’s protection of people with preexisting conditions would mean that healthy people could wait until they get sick to buy insurance. Because insurance pools rely on cross-subsidization of sick people by healthy participants, this would bankrupt the entire health insurance system. The individual mandate charges those people for at least some of the costs they impose on their fellow citizens. Massachusetts, acting a few years before the federal law, combined its guarantee of coverage with a mandate, but seven other states tried to protect people with preexisting conditions without mandating coverage for everyone. The results in those states ranged from huge premium increases to the complete collapse of the market.

Two federal district judges have declared this provision unconstitutional. The novel approach to constitutional law that they propose would misread the Constitution, betray the intentions of the Framers, and cripple the nation’s ability to address one of its most pressing problems.

The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that.

Part I of this Essay presents a brief explanation of why Congress has the power to enact this law. Part II rebuts the constitutional objections. Part III offers what the law’s opponents have demanded: an account of the limits of congressional power. Part IV explains why federal action was necessary in this case. Part V critiques the radical libertarianism that underlies the constitutional case against the law, a case that is encapsulated in the notorious “Broccoli Objection.” Part VI concludes.

I. The Obvious Constitutionality

The mandate is within Congress’s power under Article I, Section 8 of the Constitution to “regulate Commerce . . . among the several states.” Under settled present law, some of it nearly two hundred years old, Congress may regulate activity that has a substantial effect on interstate commerce. As recently as 2005, the Supreme Court held that Congress may regulate local noneconomic behavior when such regulation is an “‘essential part[] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.’” The Court thus upheld a federal ban on growing marijuana for personal consumption.

The power to regulate insurance markets is part of the commerce power. The Supreme Court declared in 1944: “Perhaps no modern commercial enterprise directly affects so many persons in all walks of life as does the insurance business. Insurance touches the home, the family, and the occupation or the business of almost every person in the United States.” So Congress has the power to impose regulations to make sure that huge numbers of Americans do not go uninsured.

The problem of insuring those with preexisting conditions could be addressed with a single-payer insurance system of the kind that exists in Canada, France, England, the Netherlands, and Australia. In such systems,everyone gets insurance provided by the government, funded by general taxation. The American government already forces you to buy single-payer insurance against poverty in your old age: Social Security. A similar single-payer system of medical care makes a great deal of sense, but too many powerful interests were arrayed against it for it to have any hope of enactment. Political obstacles aside, Congress is entitled to decide that a government monopoly of health provision would be inefficient and that insurance is best provided by the private sector. In that case, the only way to guarantee health insurance for everyone is to require the healthy to purchase private insurance. The remedy tightly fits the problem.

Congress has discretion to decide the best way to exercise its authority. The list of congressional powers in Article I ends with an authorization to “make all Laws which shall be necessary and proper” to carry out its responsibilities. The interpretation of this provision was settled in 1819 by Chief Justice John Marshall inMcCulloch v. Maryland. The central question in McCulloch was whether Congress had the power to charter the Bank of the United States, the precursor of today’s Federal Reserve Bank. The Constitution does not enumerate any power to create corporations. The State of Maryland, which was trying to tax the Bank out of existence, argued that the “necessary and proper” language permitted Congress only to choose means that were absolutely necessary to carry out those powers. Marshall rejected this reading, which would make the government “incompetent to its great objects.” The federal government must collect and spend revenue throughout the United States, Marshall observed, and so must quickly transfer funds across hundreds of miles.“Is that construction of the constitution to be preferred which would render these operations hazardous, difficult, and expensive?” Without implied powers, Congress’s power “to establish post offices” could not entail the ability to punish mail robbers and might not even entail the power to carry letters from one post office to another. “It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road.” He concluded that Congress could choose any convenient means for carrying out its enumerated powers.

The basic rule of McCulloch was reaffirmed by the Court as recently as May 2010 in United States v. Comstock.In deciding whether Congress is appropriately exercising its powers under the Necessary and Proper Clause, the question is “whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” The choice of means is left

“primarily . . . to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.”

Thus, for example, even though the Constitution mentions no federal crimes other than counterfeiting, treason, and piracy, Congress has broad authority to enact criminal statutes. The Constitution does not mention the individual mandate either, but Congress nonetheless has broad authority to impose monetary costs on those who choose to go without insurance.

II. The Purported Constitutional Limitations

Now that I have laid out the simple case for the bill’s constitutionality, I will take up the objections that claim to complicate that case.

A. The Commerce Power

The principal complaint about the mandate is that Congress should only be able to regulate economic activity, and the mandate is not a regulation of any activity. David Rivkin and Lee Casey object that it will “apply to every American simply because they exist.” But for reasons already explained, unless free riders are brought into the system, there is no way to insure everyone else. The Virginia judge, Henry Hudson, nonetheless declared that in order to be subject to regulation by Congress, an individual had to engage in “some type of self-initiated action.” The Florida judge, Roger Vinson, similarly argued that failure to purchase health insurance is “inactivity” and that Congress cannot regulate inactivity.

Vinson acknowledged that there is no authority for the activity/inactivity distinction but cited United States v. Lopez for the proposition that, unless the commerce power is somehow limited, it would be “difficult to perceive any limitation on federal power.” If Congress can regulate inactivity, Vinson declared, it “could do almost anything it wanted,” and “we would have a Constitution in name only.” Lopez itself, however, imposed limits on federal power, even though the law it struck down (a ban on possessing handguns near schools) did not regulate inactivity. Lopez constrains Congressional power without relying on the activity/inactivity distinction. The authority on which Vinson relies undermines the point he is trying to make.

It is an interesting semantic question whether the decision to free ride on the health care system without paying for insurance is economic activity. It is an economic decision with economic consequences, but it still may not be economic activity, and a great deal of ink has been spilled on that question. But it does not matter. Under the Necessary and Proper Clause, it is enough that there is a national problem that only Congress can solve, and that “‘the means chosen are reasonably adapted to the attainment of a legitimate end.’”

Opponents of the mandate claim that, even if Congress can regulate health care, it cannot demand that you purchase private insurance. “Congress has never before mandated that a citizen enter into an economic transaction with a private company,” writes Professor Randy Barnett, “so there can be no judicial precedent for such a law.” But when Congress chartered the Bank of the United States, it had never done that before either. The underlying principle behind the individual mandate is not novel at all. The Court declared it inMcCulloch: a government that has the right to do an act—here, to regulate health care—“must, according to the dictates of reason, be allowed to select the means.”

B. The Necessary and Proper Clause

Judges Hudson and Vinson both supposed that the commerce power is somehow a limit on Congress’s power to choose appropriate means.

“If a person’s decision not to purchase health insurance at a particular time does not constitute the type of economic activity subject to regulation under the Commerce Clause,” Judge Hudson declared, “then logically, an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.” By the same “logic,” if I cannot pick up a pencil with my brain, then it follows that I cannot do it with my hand either. This reads the Necessary and Proper Clause out of the Constitution completely, and it inverts the fundamental McCulloch principle. Try this reasoning in a few other constitutional contexts. If locking up mail robbers is no part of the operation of a post office, then an attempt to do that under the Necessary and Proper Clause is equally offensive to the Constitution. If growing marijuana for one’s own consumption is not regulable economic activity, then it too is immune from federal law.

Judge Vinson acknowledged, and even quoted, Chief Justice Marshall’s declaration in McCulloch that if “‘the end be legitimate,’” then “‘all means which are appropriate, which are plainly adapted to that end . . . are constitutional.’” He then admitted that, under the settled meaning of the commerce power, which he did not question, “regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions)” is a legitimate end. But, three sentences later, he declared, “The Necessary and Proper Clause cannot be utilized to ‘pass laws for the accomplishment of objects’ that are not within Congress’s enumerated powers.” Did he so quickly forget that he had just admitted that the object was within Congress’s enumerated powers?

Judge Vinson noted that the government has “asserted again and again that the individual mandate is absolutely ‘necessary’ and ‘essential’ for the Act to operate as it was intended by Congress. I accept that it is.”Indeed, because the mandate was so necessary to the legislative scheme, he declared it nonseverable and invalidated the entire law. This stipulated necessity implies that even if McCulloch had come out the other way—even if Marshall had accepted Maryland’s claim that any Congressional action must be absolutelynecessary to the exercise of an enumerated power—the mandate would be authorized by the Necessary and Proper Clause.

Vinson did suggest a more definite limitation on Congressional power: the Necessary and Proper Clause cannot be invoked if the problem Congress is trying to address is Congress’s own fault. Here is the argument:

[R]ather than being used to implement or facilitate enforcement of the Act’s insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or “necessary” the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning.

If, however, Congress has no power to address negative consequences that follow from its own statutory scheme, then Chief Justice Marshall was wrong about mail robbery after all. Mail robbery is an adverse consequence of Congress’s decision to establish a post office: had it not done that, all those valuable documents would not be gathered together in one place. But, you might say, That is crazy; of course Congress can decide that it’s worth having a post office, even if establishing one creates negative side effects, which then must be addressed. If, as Judge Vinson admitted, Congress can also decide that people with preexisting conditions can be protected, then these cases are indistinguishable.

C. The Taxing Power

Even if you somehow suppose that the health care mandate exceeds the commerce power, it would be valid anyway as an exercise of the power to tax. Congress has a general power to “collect Taxes” to provide for the “general Welfare of the United States.” The taxing power is not limited to objects of interstate commerce. A tax, the Court held in 1950, does not become unconstitutional “because it touches on activities which Congress might not otherwise regulate.” A claim that the tax is a “direct tax”—forbidden by Article I, Section 9—is even stranger, since the mandate is neither a general tax on individuals nor a tax on real estate, the original targets of this obscure and now rarely invoked provision.

Judges Hudson and Vinson declared that the mandate is not a tax because some of the law’s sponsors sometimes claimed that it was not and because the statute declared that it was based on the commerce power. This reasoning would create two remarkable new doctrines: federal courts have authority to police the public statements of politicians, and Congress must expressly invoke all possible constitutional bases for legislation. It is, however, long-settled doctrine that federal statutes are presumed to be constitutional and that—as the Supreme Court said in 1948—“[t]he question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Judge Vinson also repeatedly suggested that whenever Congress does something it has not done before, its action is presumptively unconstitutional. These new rules would, if consistently applied, randomly blow up large parts of the U.S. Code. This is constitutional interpretation undertaken in the spirit of a saboteur in wartime.

III. The Real Constitutional Limits

Steven Lubet has offered an elegant summary of the constitutional claim against the federal health insurance mandate: “(1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.”

There may be no need for judicially imposed limits on Congressional power. There were practically no such limits between the 1930s and the 1990s, yet the federal government did not take over all state functions: tort law, contract law, criminal law, and education remained dominated by state law. Lopez imposed a new restriction, though its contours remain uncertain. The Lopez Court thought it relevant that Congress was trying to regulate noneconomic activity, and the Court later suggested in United States v. Morrison that Congress has broad authority over the economy. This economic/noneconomic test supports the 1944 holding that Congress can regulate insurance.

There is, however, reason to doubt the soundness of the economic/noneconomic line. While it makes sense to say that Congress can regulate any economic transaction, the Court’s language suggests that this might be the test, not only for what is included in the commerce power, but also for what is excluded. If that were the rule,then Congress would be deprived of authority over such nontrivial matters as the spoliation of the environment or the spread of contagious diseases across state lines. The Court has already suggested on this basis that Congress may not have the power to regulate wetlands that are wholly within a single state.

A better rule would implement the line that the Framers of the Constitution drew—a line that has nothing to do with the activity/inactivity distinction, although it supports congressional regulation of the economy. This line also supports the mandate.

At Philadelphia in 1787, the Convention resolved that Congress could “legislate in all cases . . . to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” This was then translated by the Committee of Detail into the present enumeration of powers in Article I, Section 8, which was accepted as a functional equivalent by the Convention without much discussion. Article I, Section 8 includes the commerce and “necessary and proper” provisions.

Did the Committee of Detail botch its job, limiting congressional power more than the Convention intended and creating a regime in which Congress could not legislate in cases the separate states were incompetent to address? Did the Convention not notice the massive change? No. “[T]he purpose of enumeration,” Jack Balkin observes, “was not to displace the principle but to enact it.” This language was accepted without objection for good reasons. Balkin shows that the word “commerce” at the time of the framing referred to all interaction between people, and so “the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state.” If health care markets involve such effects or problems, then the mandate presents, once more, an easy case. The Framers’ most important decision was to replace the weak Articles of Confederation with a central government strong enough to address common problems. This is not a recipe for unlimited power: grandstanding statutes that horn in on matters that are purely local, such as the federal ban on the possession of handguns near schools that the Supreme Court struck down in Lopez, exceed the commerce power. But the national health care insurance market is not a purely local matter.

This approach justifies congressional authority over the economy, even in its local incidents, because the United States in fact has a single unified economy. You may, however, wonder whether health care reform happens to be another unnecessary centralization of an area that states were handling perfectly well. If it is, this might raise doubts about the Court’s decision—which, I emphasize, is settled law—to concede to Congress’s broad economic authority, and perhaps would even justify a reshaping of settled law to put a stop to this centralization. I now address this concern.

IV. Why Congressional Action Was Necessary

One thing that the Framers did not anticipate was the spectacular advances of the past two hundred years in our capacity to treat disease, prolong life, and ameliorate congenital illness. Many of these innovations are expensive. So with modern medicine comes a new kind of moral horror: the patient with a treatable disease who cannot afford to pay for the treatment.

The spillover effects are clear. Individuals with preexisting conditions are deterred from pursuing new opportunities in states where insurers are allowed to deny them coverage. Those with preexisting conditions whose jobs provide insurance are locked into those jobs: they are afraid to move to a different employer or to start their own businesses. Both of these effects burden the American economy as a whole.

Health insurance regulation also presents a collective action problem. The reform of the American health care system to ensure that no one would be uninsurable or bankrupted by illness was too big a task for the states to address individually. It requires more regulatory skill than most states can muster.

How can we know that collective action problems are the reasons why states have not undertaken massive health care reform? Could it not rather be evidence that local preferences are different in different places and that federalism has enabled variation of a benign sort?

It is difficult to know for certain why legislation does not get enacted. But there are several pieces of information that can be the basis of reasonable inferences. One of these is that, according to a February 2011 Kaiser poll, an overwhelming majority of Americans—72 percent—supported guaranteed insurance for people with preexisting conditions. Yet only Massachusetts managed to implement it. If states are not delivering guaranteed insurance, it is not because the electorate likes that state of affairs. Contrast the law at issue inLopez: it was obvious that nothing prevented states from banning handguns near schools, because more than forty of them already had such laws.

Massachusetts is the only state that managed to expand health insurance in the way that the new federal statute does. It has been very successful: less than 3 percent of the state’s population was uninsured by 2008, compared with 14 percent before implementation. The state embarked on that project with some unusual advantages. The number of uninsured persons was relatively low when the policy was adopted. Many of the uninsured were eligible for Medicaid. The percentage of the population carrying employer-sponsored coverage, along with per capita income, was unusually high, creating a larger tax pool. The level of insurance was already quite good, and so the transition was not an enormous lurch. A recent study describes the comparative obstacles faced elsewhere:

Other states will start with very different baseline benefits generally available. For example, some states have a high penetration of high-deductible plans; others are dominated by one or two insurers with a particular set of benefits; and still others have a range of insurance products with significant differences in benefit levels. Requiring comprehensive benefits similar to Massachusetts in these states would likely entail requiring many who currently have insurance to change or upgrade their plans in order to comply. Employers would have to consider upgrading plans at great expense. This could ultimately jeopardize broader support for a reform program. Conversely, setting the [minimal level of coverage] at the least common denominator plan may leave many without adequate coverage and underinsured.

All of these factors are substantial obstacles to replicating what Massachusetts has done, even if another state’s citizens want to do so.

There is also the problem of adverse selection. Any state that mandates insurance for preexisting conditions risks attracting sick people and driving away healthy ones. The magnitude of this effect is uncertain, but its effect on states’ incentives is plain. There is not much evidence for the notion that high levels of public support are “welfare magnets” that attract the poor across state lines, but fear of creating such magnets has made it hard to ameliorate poverty. A similar dynamic is likely at work here. How great is the danger, really? It is hard to say. People make residence decisions based on a wide range of factors, including the availability of benefits. In the health insurance case, the answer probably varies from one place to another, depending on the costs of moving. For example, the heavy burdens borne by Tennessee’s health care system may be related to the fact that its most populous city, Memphis, is bordered by Mississippi and Arkansas, which offer much lower benefits. TennCare insurers are also concerned that patients from other states may be establishing residency in Tennessee in order to obtain coverage for organ transplants. There is no data available on this question, but it is hard to believe that no one responds to incentives when failure to do so is literally suicidal. Whatever the facts are, the political obstacle is a powerful one. States are reluctant to legislate because they worry that they will lose the race to the bottom. These collective action problems mean that most states cannot reform health insurance even if they all would prefer to. It is a matter in which the states are separately incompetent. Congress has the power to regulate insurance, the Court noted in 1944, because it has power “to govern affairs which the individual states, with their limited territorial jurisdictions, are not fully capable of governing.”

Compare the case of child labor. When Congress acted in 1916 to ban the interstate shipment of the products of child labor, the government warned that, absent such a law, “[t]he shipment of child-made goods outside of one State directly induces similar employment of children in competing States.” The collective action problem weighed heavily on state policymakers. The Supreme Court’s invalidation of the law astounded even those who had most strenuously opposed enactment and provoked a wave of national revulsion and the rapid enactment of a second law—a tax on products of child labor—which the Court also invalidated. Jonathan Adler,a prominent defender of Judge Hudson’s decision, does not believe the race-to-the-bottom argument in this context either, noting that at the time every state already had a law restricting child labor. This, however, ignores the enormous variation in child labor policy: some laws were weak; others were ineffectively enforced. Interstate competition kept them weak.

The precise uncertainty that drives the objection—that it is hard to know when a race to the bottom is happening—is part of the collective action problem. States do not know whether they will be disadvantaged in interstate competition by having welfare-promoting legislation. This deters them from enacting it. Congress does not have this problem.

As noted earlier, because there is a unified national economy, courts do not and should not demand proof of collective action problems before sustaining economic regulations such as the mandate. With respect to noneconomic regulations, such as environmental laws, all that it makes sense for courts to ask for is (1) a plausible description of a collective action problem and (2) evidence of the failure of states to solve it. As we have already seen, neither (1) nor (2) was available in Lopez. Both are present in the health care context.

V. The Broccoli Revolution

If the limitations they demand are not accepted, Rivkin and Casey warn, Congress will have the power to do absolutely anything it likes, and “the whole concept of the federal government being a government of enumerated and limited powers goes out the window.” Judge Vinson worried that “Congress could require that people buy and consume broccoli at regular intervals.”

They understand perfectly well that the law is permissible under presently prevailing interpretations of the Constitution. What they really want is, not to invoke settled law, but to replace the constitutional law we now have with something radically different. They claim originalist credentials, but, as we have seen, these are bogus. Their proposed reinterpretation of the Constitution would mean that the problem of preexisting conditions cannot be solved at all. A regime in which major national problems cannot be solved by anyone is what the Framers were attempting to replace.

The Broccoli Objection, as I will call it, rests on several mistakes. One of these is mushing two claims together, so that the weaker one sneakily borrows support from the stronger, but less relevant, one. Yes, government cannot make you eat broccoli. That would violate the constitutional right to bodily integrity that supports, for example, the right to refuse unwanted medical treatment. But there is no such right to economic liberty. The economic claim collapses once it is decoupled from the bodily integrity claim. If Congress has broad authority over the economy, then it can make you buy broccoli.

How scary is that? It is hard to see how such a law could be justified. It would be an abuse of Congress’s broad authority under Morrison, because the law would not be addressing any collective action problem. But this hypothetical is not an objection to the mandate that Congress actually enacted. There are manifest differences between broccoli and health insurance: no one unavoidably needs broccoli; it is not unpredictable when one will need broccoli; broccoli is not expensive; providers are permitted by law to refuse it; and there is no significant cost-shifting in the way it is provided.

Here we come to the Broccoli Objection’s second mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one. Frederick Schauer showed over twenty-five years ago that any slippery slope argument depends on a prediction that doing the right thing in the instant case will, in fact, increase the likelihood of doing the wrong thing in the danger case. If there is no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100 percent, thereby wrecking the economy. Relax! It will not happen. John Hart Ely defended his rejection of substantive due process against the objection that Congress could then ban the removal of diseased gall bladders by noting that such a law could not possibly pass. What he wrote then is remarkably pertinent: “[I]t can only deform our constitutional jurisprudence to tailor it to laws that couldn’t be enacted, since constitutional law appropriately exists for those situations where representative government cannot be trusted, not for those where we know it can.”

Similarly with the Broccoli Objection. The fear rests on one real problem: there are lots of private producers, including many in agriculture, who will lobby to use the coercive power of the federal government to transfer funds from your pockets into theirs. The last thing they want to do, however, is impose duties on individuals, because then the individuals will know that they have been burdened. There are too many other ways to get special favors from the government in a less visible way. So Congress is never going to try to make you eat your broccoli.

On the other hand, you are probably already consuming more high-fructose corn syrup than is good for you. Subsidies for the production of corn have produced huge surpluses of the syrup, which in turn becomes a cheap ingredient for mass-produced food and turns up in a remarkable amount of what you eat. So consumers have to face obesity, diabetes, and dental caries, but no mandate! You and I are paying for this travesty, and it is happening in such a low-visibility way that many of us never realize that Dracula has been paying regular visits. The Broccoli Objection thus distracts attention from the real problem, one that will not be addressed by the action/inaction distinction. If the Supreme Court is going to invent new limits on the legislature, it should do so in a way that has a real chance of preventing actual abuses. Otherwise it is hamstringing the legislature for no good reason.

In the context of federalism, slippery slope arguments have an unpleasant history. When it struck down the first child labor law in 1918, the Supreme Court declared—in tones reminiscent of the Broccoli Objection—that if it upheld the law, “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” The decision was overruled in 1941. Our system of government was not destroyed. The real lesson of this episode is that the desire to rein in government power can create a slippery slope of its own, to a state of affairs in which collective action problems go unsolved. What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for two decades. Health care is another context in which the Court is at serious risk of ravaging the lives of large numbers of actual people. In both the child labor and health care contexts, opponents of reform flee from illusory dangers into the jaws of real ones.

If the law’s critics are right, we have an obligation to replace the well-functioning constitutional system we have inherited with one that is radically defective. Marshall was right. A construction that denied Congress the power to choose the most sensible method for carrying out its lawful purposes would be “so pernicious in its operation that we shall be compelled to discard it.”

What really drives the constitutional claims against the bill is not arguments about the commerce power or the taxing power but an implicit libertarianism which focuses on the burden a law imposes on individuals and pays no attention at all to legitimate state interests. A Heritage Foundation paper warns: “Mandating that all private citizens enter into a contract with a private company to purchase a good or service, or be punished by a fine labeled a ‘tax,’ is unprecedented in American history.” The Florida Attorney General argued for a substantive constitutional right “to make personal healthcare decisions without governmental interference.” Near the end of his opinion, in a dictum that evidently reveals what is really bothering him, Judge Hudson writes: “At its core, this dispute is not simply about regulating the business of insurance–or crafting a system of universal health insurance coverage–it is about an individual’s right to choose to participate.”

The Supreme Court rejected the purported “inherent right of every freeman to care for his own body and health in such way as to him seems best” in 1905, in Jacobson v. Massachusetts. The claimant there asserted that mandatory smallpox vaccination violated his rights. It is true that vaccination is an imposition on one’s liberty. Dying of smallpox is also an imposition on one’s liberty.

Jacobson was decided the same year as the infamous Lochner v. New York, in which the Court invented a right of employers to be free from maximum hours laws. Many in the legal community have regarded the constitutional objection to the mandate as a return to Lochner, but the “right” that the mandate is supposed to violate was too much even for the Lochner Court. Was Jacobson wrong? Does the Constitution protect the smallpox virus?

This implicit libertarianism is pervasive in these arguments against the law, but it is intellectually incoherent, because the argument purports to apply only against the federal government, not the states. It has not been explained where this individual right is supposed to come from—it happens not to be mentioned in the text of the Constitution—or why it does not also invalidate anything that the states might do to force people into insurance pools.


What will the Supreme Court do? There is no nice way to say this: the silliness of the constitutional objectionsmay not be enough to stop these Justices from relying on them to strike down the law. The Republican Party, increasingly, is the party of urban legends: that tax cuts for the rich always pay for themselves, that government spending does not create jobs, that government overregulation of banks caused the crash of 2008, that global warming is not happening. The unconstitutionality of health care reform is another of those legends, legitimated in American culture by frequent repetition.

If the Constitution were as defective as the bill’s opponents claim it is, a regime in which national problems must remain permanently unsolved, why would it deserve our allegiance? The sensible thing to do would be to try to get free of it, to try—by amendment or judicial construction—to nullify its limits so that we can live in a humanly habitable world. To continue to live with such a perverse Constitution would be mindless ancestor worship.

But the opponents of reform have been unfair to the Framers. Chief Justice Marshall was right when he said that the Constitution does not “attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” Instead, it provides a structure for us to govern ourselves. That is what Congress did when, at long last, it took on the spectacularly broken American system of health care delivery.

Consider the Alternative

The Bureau of Land Management (BLM) and United States Forest Service (USFS) recently considered four alternatives for a drilling proposal in the Pinedale Resource Area of the Wyoming Range. In the Draft Environmental Impact Statement (DEIS), BLM rejected two alternatives as unreasonable. The remaining two alternatives – including the alternative selected by BLM – were substantially identical. None of the alternatives included what I would consider reasonable environmental protection for watersheds and habitat.

BLM has the authority — and, according its own guidance documents, a duty —  to consider an alternatives that impose stringent environmental protections.  This position has ample support in the case law interpreting an agency’s responsibility to “objectively evaluate all reasonable alternatives” under the National Environmental Policy Act (NEPA).

The purpose and scope of a project define the range of alternatives that must be considered in an EIS. BLM is required to “take environmental values into account” in carrying out its regulatory functions for oil and gas development. It also has a substantive duty to “minimize damage to . . . fish and wildlife habitat and otherwise protect the environment.” Given that the rights granted in an oil or gas lease are explicitly “subject to” BLM’s right to condition development for its environmental purposes, measures to protect watersheds and fish are consistent with the purpose and scope of any proposal to drill on a lease. Therefore, to the extent that these measures are feasible and effective, they are reasonable alternatives and should be fully analyzed in the EIS.

I. The Alternatives Requirement

BLM must “rigorously explore and objectively evaluate all reasonable alternatives” when formulating a DEIS so that reviewers may evaluate their comparative merits. The alternatives section must also include a discussion of appropriate mitigation measures. While NEPA does not require the agency to analyze alternatives it has in good faith rejected as too remote, speculative, impractical, or ineffective, it does require the development of information sufficient to permit reasoned choice of environmental protections. Accordingly, the existence of a reasonable, but unexamined, alternative renders the EIS inadequate.

TU’s desired alternative would likely be considered a “reasonable” alternative. An alternative is “reasonable” only if it falls within the agency’s statutory purposes. For BLM, the alternative must fall within its duties under the Mineral Leasing Act (MLA) and Federal Land and Policy Management Act (FLMPA). The FLPMA directs BLM to “minimize damage to . . . fish and wildlife habitat and otherwise protect the environment.” The MLA requires BLM to “regulate all surface-disturbing activities conducted pursuant to any lease . . . in the interest of conservation of surface resources.” Thus, an alternative that would impose strict protections for watersheds and fish habitat is reasonable because it is consistent with BLM’s responsibilities under these statutes.



II. Seminal Cases Discussing the Alternatives Requirement


A. Methow Valley – Duty to discuss mitigation measures


The Supreme Court confirmed an agency’s duty to consider adequate mitigation measures under NEPA in Robertson v. Methow Valley Citizens Council. in Methow Valley, the plaintiffs challenged a Forest Service permit for a ski resort in a national forest. The Court held that the requirement that an agency consider mitigation measures is implicit in “NEPA’s demand” and CEQ regulations. The omission of a “reasonably complete discussion” of mitigation measures would undermine NEPA’ s action-forcing function. Without such a discussion, the Court added, neither the agency nor other interested groups or individuals could properly evaluate the severity of the adverse effects of the action.

NEPA’s requirement to discuss mitigation, however, ends with the discussion. There is no substantive requirement that a complete mitigation plan be actually formulated or adopted. Methow Valley rejected the Ninth Circuit decision that the Forest Service had the duty to develop necessary mitigation measures before it could issue a permit for the ski resort.

Despite this holding, Methow Valley’s emphasis on the need to discuss mitigation measures in impact statements reinforces the importance of mitigation in the NEPA process, and supports TU’s desire to require BLM to consider environmental alternatives in the future. Indeed, lower federal courts now give discussion of mitigation measures careful attention. Methow Valley’s reliance on CEQ’s interpretation of the Act also strengthens the role of CEQ in defining the impact statement process and what it should contain, including discussion of adequate mitigation measures.


B. Calvert Cliffs – NEPA’s Alternatives Requirements

NEPA actually contains two provisions requiring a discussion of alternatives. The provision requiring the preparation of impact statements requires a discussion of “alternatives to the proposed action.” Another provision, § 102(2)(E), requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”

The importance of both alternatives requirements was emphasized in the first landmark case on NEPA, Calvert Cliffs’ Coordinating Committee, Inc. v. Atomic Energy Commission. The court noted that the alternatives requirements seek—


to ensure that each agency . . . takes into proper account all possible approaches to a particular project . . . which would alter the environmental impact and the cost-benefit analysis. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made.


Courts have held that agencies must comply with the alternatives requirement in § 102(2)(E) even when they do not have to prepare an impact statement. Although the alternatives requirement in § 102(2)(E) imposes somewhat different responsibilities and may be more rigorous than the requirement to discuss alternatives in an impact statement, courts often view the two alternatives requirements as interchangeable. Nonetheless, Calvert Cliffs lends further support to TU’s desire for the BLM to consider environmental alternatives in the future by recognizing the purpose and importance of both alternatives requirements.


C. California v. Block – Inadequate Range of Alternatives

The opinion in State of California v. Block contains an extension discussion of the duty to consider an adequate range of alternatives. In Block, the Plaintiffs challenged the EIS informing the Forest Service’s decision over which portions of a 62 million-acre national forest should remain roadless and designated wilderness. The Service considered 11 alternatives, ranging from the extremes of all wilderness to no wilderness. In between the extremes, however, none of the alternatives considered allocating more than 33% of the roadless area to wilderness. In holding that this was inadequate, the Ninth Circuit emphasized that an agency need not consider every alternative or alternatives that are unlikely to be implemented for legitimate reasons, but, equally, it must not ignore important alternatives or bias in its evaluation by arbitrarily narrowing the range of options considered.

The Block court held the Service should have considered the alternative of allocating more than one-third of the land to the wilderness category. It noted that the agency’s failure to consider this alternative was “puzzling,” especially as all 62 million acres of the forest met the criteria for wilderness. The court was also troubled that the agency’s selection of alternatives dictated an “end result” in which nonwilderness designations exceeded wilderness designations by a substantial margin.

The Service claimed the range of alternatives selected was adequate because the decisional criteria used to evaluate alternatives were diverse. The court disagreed. It held that the numerical values used to apply the criteria were not explained, that the cutoff points for designation varied from one alternative to the other, and that the agency could not emphasize decisional criteria over the actual results they generated. Other cases have similarly held an agency may not skew its alternatives in favor of a certain result.


D. Legacy Parkway – Failure to evaluate alternatives to protect habitat

The Great Salt Lake (“GSL”) and the wetlands surrounding its shoreline provide critical habitat for migratory birds. The Legacy Parkway, the first segment of a much longer proposed road extending along Utah’s Wasatch Front, would traverse fourteen miles along the GSL shoreline. Commenters urged the lead agencies to consider alternative means of meeting regional travel demand, including other highway alignments, mass transit, and land use planning, that could have lessened the parkway’s destruction of bird habitat. The Army Corps of Engineers refused to evaluate these alternatives in the EIS, apparently because they would have increased the cost of the project.

The EIS recommended as the preferred alternative a freeway design that would erase 114 acres of GSL wetlands. This was less than the 188 acres under the most damaging proposed route, but still more than under the least damaging alternative identified in the EIS. The Tenth Circuit found the EIS inadequate on three main grounds: (1) failure to consider a narrower right-of-way for the proposed road, which would have reduced wetland impacts; (2) failure to consider a proposed light rail as a less damaging practicable alternative; and (3) failure to evaluate wildlife impacts properly.

The litigation ended with a settlement between the environmental plaintiffs and the agencies. The road was redesigned to meander around wetlands and other sensitive areas, to prohibit most trucks, and to have a speed limit of fifty-five miles per hour. Slower speeds and the absence of trucks will reduce highway noise dramatically, reducing disturbance to birds in the GSL habitats.


III. The purpose and need of lease development on federal lands, generally


A. BLM’s environmental purpose

BLM should also examine TU’s environmental alternative because it is required to examine methods of protecting the environment by its enabling legislation.” While BLM’s authorities direct the agency to maximize oil and gas recovery, development is not its sole purpose. The MLA and FLPMA establish policy and requirements to protect the natural environment. These include the policy that the public lands be managed to protect ecological and water resources, provide habitat for fish, and to provide for outdoor recreation. Specifically, the MLA directs BLM to “regulate all surface-disturbing activities conducted pursuant to any lease . . . and determine reclamation and other actions as required in the interest of conservation of surface resources.” Moreover, the FLPMA requires that BLM, in managing the public lands, “take any action necessary to prevent unnecessary or undue degradation (UUD) of the lands.” Thus, the agency must take any action needed to prevent any activities, even if the activities are necessary for extracting minerals, that would unduly harm the public land.


B. The rights granted in an O&G lease are subject to BLM’s environmental purpose

Oil and gas leases grant the lessee the right to extract any oil or natural gas that may be found on the lease. However, an oil and gas lease does not grant an unqualified right to development. Under the standard modern O&G lease (post-1984) and BLM’s § 3101.1-2 regulation (1988), BLM has made any development of the lease or the removal of oil or gas “subject to” a number of provisions that allow BLM to protect the natural environment.

Many of these retained rights are grounded in BLM’s mandatory environmental protection obligations. The lease provides that the holder’s extraction right is subject to the agency’s need to comply with its responsibilities under FLPMA and MLA, any other applicable laws, regulations, and formal orders in effect when the lease is issued. The § 3101.1-2 regulation further makes the lease subject to any “reasonable measures” the BLM might impose to reduce the adverse environmental impacts of development. BLM’s “reasonable measures” authority is specifically reserved by section 6 of the modern lease. BLM can use this authority to condition its approval of drilling projects on reasonable environmental protections. Conditions for protecting watersheds and habitat may include regulating the timing of operations and the siting and design of facilities, as well as specification of the rates of oil and gas development and production. BLM can even prohibit development if the environmental impacts are substantially different or greater than normal. In short, BLM has ample authority to regulate the time, place, and manner of drilling activities.

If BLM fully exercised that authority, it could considerably reduce the harms of mineral extraction on watersheds and habitat. It could dictate the pace of development, require directional drilling and “closed-loop” fluid systems, confine operations to prescribed areas, or even suspend lease development in the interest of conserving these resources.


IV. Recent Cases


A. Otero Mesa (10th Cir. 2009) – closing entire grassland to lease development

The 10th Circuit held that the BLM was required to analyze an alternative that imposed strict environmental protections in Mtn. Oil & Gas Ass’n v. Watt. It recently reaffirmed that holding in a case similar to TU’s facts here. In 1997, an exploratory well struck natural gas on the Otero Mesa. O&G companies responded by nominating over 250,000 acres in the area for federal leases, and BLM determined the increased development interest required a new resource management plan. BLM conducted a large-scale land management planning process for O&G development in Sierra and Otero Counties, where the Mesa is located. The plan-level EIS recommended opening the majority of the Mesa to development, subject to a stipulation that only 5% of the surface of the Mesa could be in use at any one time.

The EIS analyzed five possible alternative management schemes for development in the area, three of which were fully analyzed. The other two were eliminated without further analysis.

Both eliminated alternatives would have increased the level of environmental protection for the entire plan area beyond any of the fully analyzed alternatives. One would have imposed a blanket ban on minerals development leasing; the other, through a “no surface occupancy” (“NSO”) stipulation allowing minerals development only by slant drilling from non-BLM lands. These alternatives were “considered initially but eliminated prior to further analysis” based on BLM’s conclusion that adopting a plan which so limited development would be arbitrary and capricious under FLPMA’s multiple-use mandate. BLM also discounted one of the three alternatives analyzed in the Draft EIS, the “No-Action Alternative,” as inconsistent with its own policies.

Thus, BLM was left with two possible management schemes, “Alternative A” and “Alternative B.” Of the two, Alternative A placed fewer restrictions on development, and BLM selected it as the preferred alternative. Alternative A opened 96.9% of the plan area but placed limitations on possible development, subjecting 58.9% of the area to a combination of NSO stipulations, controlled surface use stipulations, and timing stipulations. More importantly, Alternative A subjected 116,206 acres of the Otera Mesa to an NSO provision limiting disturbances to any 5% of the surface area of a leased parcel at a given time, regardless of location. BLM crafted this NSO restriction “[t]o protect portions of the remaining desert grassland community by minimizing habitat fragmentation.”

BLM refused to consider closing the entire Otero Mesa to O&G development, because it believed that a complete restriction on drilling violated the concept of managing for multiple use.

The Tenth Circuit rejected that argument, and decided that an alternative of closing the entire Mesa fell within BLM’s statutory mandate. The FLPMA requires BLM to manage public lands under the principle of multiple use. “Multiple use” means


a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.


The court emphasized that multiple use does not direct BLM to prioritize development over other uses. And it does not require that every use be accommodated on every piece of land. If all the competing demands reflected in FLPMA were focused on one particular piece of public land, in many instances only one set of demands could be satisfied. For example, “a parcel of land cannot both be preserved in its natural character and mined.” Accordingly, BLM’s multiple use duty did not mean that drilling must be allowed on the Mesa. Development is a possible use, which BLM must weigh against other possible uses – including conservation to protect environmental values, which are best assessed through the NEPA process. Because BLM had not assessed an alternative of closing the Mesa to drilling activities, it had failed to analyze an adequate range of alternatives.

In short, this case decided that an alternative of closing an entire area to lease development is consistent with BLM’s statutory purpose, and that the multiple use duty is not a sufficient reason to exclude more protective alternatives from consideration. Accordingly, Otero Mesa squares on all fours with the facts presented by TU in this memo, and can be cited as supporting authority.


B. Anglers of the Au Sable (D. Mich. 2008) – alternative to protect trout

The court in Anglers of the Au Sable considered BLM’s and the Forest Service’s obligations under NEPA where a company was seeking to drill exploratory wells. . The court found that the agencies failed to “objectively evaluate all reasonable alternatives” by not considering greater protections for trout habitat. The range of alternatives considered in the EIS was deficient for two reasons. First, the no action alternative was improperly rejected because the Forest Service felt it was obligated to approve drilling. The court held, however, that none of the Service’s authorities require approval of a leaseholder’s proposed mineral extraction, foreclose a decision of No Action, or place the Service’s objectives at odds with environmental preservation. Additionally, the court noted that the plain language of 43 C.F.R. § 3161.2, which directs BLM to require that operations protect environmental quality, “makes it clear that approval is not appropriate in all cases, particularly cases where the project poses a threat to environmental quality.”

Second, the agencies impermissibly limited the range of alternatives to only those that would meet [the O&G company’s] project objectives, rather than alternatives that might better serve the agencies’ [environmental] goals.” In short, Au Sable confirmed that the rights of a mineral leaseholder are subject to BLM’s environmental obligations. When operations are proposed on a lease, BLM must interpret and perform its obligations in light of the policies established by NEPA.


C. Oregon Natural Desert – resource management alternatives

BLM’s impact statement for its Southeast Oregon Resource Management Plan violated NEPA by failing to consider alternatives that would have closed more acreage to off-road vehicles.

The EIS analyzed seven alternatives. With regard to ORV use, the alternatives varied almost entirely by the amount of land allocated between open and limited-use categories. Importantly, BLM never considered closing a significant amount of land to ORVs, nor did it consider an option geared toward protecting wilderness values from ORV use. The most protective limited-use category restricted ORVs to existing routes in wilderness areas and imposed seasonal closures to protect wildlife. But every alternative exposed more land to some type of ORV use than was previously permitted. For example, BLM’s recommended alternative opened approximately 20,000 acres of previously closed land to some ORV use. With regard to grazing, BLM considered only one alternative with substantial restrictions, and did not consider limiting grazing in areas with wilderness characteristics outside of designated wilderness.


D. Northern Alaska – adequate range of alternatives

Environmental plaintiffs challenged the adequacy of the EIS prepared by the BLM for its plan to offer long term oil and gas leases in the NWPA of Alaska. The leases would enable the oil companies to undertake exploration to determine what sites could be developed for productive drilling. The Ninth Circuit determined that BLM had adequately examined a range of viable alternatives.

The plaintiffs argued that BLM violated NEPA by failing to consider an alternative proposed by the Audubon Society in developing its recommended course of action in the EIS. The Audubon alternative recommended that BLM add four new special areas and, therefore, make 35 percent of the high oil potential area unavailable for leasing. Although BLM chose not to consider the Audubon alternative itself, the preferred alternative it did adopt included some similar protections. The court decided that BLM’s explanation that the Audubon alternative as a whole was inconsistent with the NWPA project and statutory mandates, coupled with BLM’s willingness to incorporate several recommendations into the preferred alternative, was a sufficient explanation for its refusal to consider entire Audubon proposal. Since BLM adopted components of the Audubon alternative, the BLM adequately examined a range of viable alternatives in preparing the FEIS.

Significantly, the court also concluded that BLM can condition permits for drilling on implementation of environmentally protective measures, and it can reject a proposal altogether if a particularly sensitive area is sought to be developed and mitigation measures are not available.


V. Conclusion


In short, BLM is required to “take environmental values into account” in carrying out its regulatory functions for oil and gas development. It also has a substantive duty “minimize damage to . . . fish and wildlife habitat and otherwise protect the environment.” And given that the rights granted in an oil or gas lease are explicitly “subject to” BLM’s right to condition development for its environmental purposes, measures to protect watersheds and fish are consistent with the purpose and scope of any proposal to drill on a lease. Therefore, to the extent that these measures are feasible and effective, they are reasonable alternatives and should be fully analyzed in the EIS.


Crime of Mistaken Speech


Elizabeth O’Nan lives alone on an 80 acre “island” of land she owns in the middle the Pisgah National Forest in northwestern North Carolina. O’Nan is 86 years old. Her property is accessible only by a small forest service road, over which she holds an easement. In December of 2010, the Forest Service charged O’Nan with blocking that forest road, in violation of 36 C.F.R. § 261.12(d), because she told a hunter that she owned the road and he had no right to use it.

O’Nan proceeded prose before a federal magistrate judge and was convicted. On appeal to the district court, O’Nan raised a first amendment defense to the charge. She argued, in essence, that the rule is constitutionally infirm because it permits punishment of protected speech based on viewpoint — that is, speech excluding hunters from the road. The district court reviewed for plain error and affirmed. The case is now before the Forth Circuit.

O’Nan’s position goes something like this. When she told the hunter he had no right to use the road, she engaged in constitutionally-protected speech. If so, the district court mischaracterized her speech as criminal interference with the use of a road. In holding that O’Nan could be sanctioned for what she said to the hunter, the court conflated protected speech and criminal conduct. On this theory, the two are distinctly different: while an agency may criminalize physically blocking a service road, it may not criminalize speech, even when the purpose of the speech is to stop people from using the service road.

To prevail on this argument, O’Nan would have to distinguish her case from the line of cases in which the Supreme Court has permitted the punishment of speech as an “illegal course of conduct.”


II. Discussion: Speech as an Illegal Course of Conduct

A. 36 CFR s. 261.12(d)

The road-blocking rule is a generally applicable law that is being applied to speech, but that on its face doesn’t mention speech. It was triggered against O’Nan by what she communicated. So we might call the rule content- based as applied, because the content of her speech triggered its application. This mechanism does not just restrict some speech more than other speech–most content-neutral laws do that. Rather, the rule applies to speech precisely because of the harms that supposedly flow from the content of the speech: threatening to have the hunter arrested for trespassing violated the road-blocking rule because it interfered with his use of the road.

In 1998, an Idaho district court upheld this regulation against a First Amendment challenge. The Ninth Circuit affirmed without comment. That case involved an environmental protestor who physically blocked traffic on a logging road. The protestor, Scranton, was found perched on top of a tripod structure in the center of the Forest Service road. The tripod stood thirty feet tall; near the top of the tripod a plywood platform supported Scranton. Forest Service officers used a “cherry picker” to elevate themselves to the platform level. As they did so, Scranton placed her arms inside a welded, L-shaped metal pipe attached to a tripod leg. She told the officers that she would not quit the tripod “until the logging stopped.” Forest Service officers attempted to remove Scranton’s arms from the pipe. When their efforts proved unsuccessful, they cut the strap securing the pipe to the tripod leg. After approximately twenty minutes, Scranton announced that her arms were going numb and that she was willing to leave the tripod platform. She was then removed and arrested.

Scranton argued that the language of the rule was unconstitutionally vague, and that a facial challenge was warranted because the rule implicated constitutionally protected conduct. The district court disagreed. First, it determined that the rule’s prohibition of “blocking, restricting or otherwise interfering” with the use of a Forest Service road did not reach a substantial amount of constitutionally protected conduct. Second, the court found that the regulation did not prevent the expression of First Amendment conduct in a multitude of other, lawful ways. Therefore, Scranton’s vagueness challenge had to be “examined in the light of the facts at hand.” Scranton’s conduct clearly fell within the scope of the regulation – she blocked the Forest Service Road by maintaining a giant tripod in the roadway.

By contrast, O’Nan’s conduct involved only speech. This difference, however, may not be enough to distinguish her case from the Supreme Court’s “speech as an illegal course of conduct” jurisprudence.


B. Giboney

“It has never been deemed an abridgement of freedom of speech,” Justice Black wrote for the Court in Giboney v. Empire Storage & Ice Co., “to make a course of conduct illegal merely because the conduct was in part carried out by means of language.” In subsequent opinions, the Court has characterized Giboney as stating that speech may be punished when it’s “brigaded with illegal action.” The Fourth Circuit described the Giboney principle as authorizing speech restrictions when the speech is tantamount to a “speech act.”

Giboney upheld an injunction against peaceful picketers who were trying to pressure a business “to agree to stop selling ice to nonunion peddlers.” Such an agreement, the Court said, would have violated antitrust law; therefore, enjoining such picketing did not violate the First Amendment. But the Giboney argument has also been used to justify a wide variety of speech restrictions:


(a) The DOJ and a court of appeals have recently reasoned that Giboney lets the government restrict books that may inform people how to violate the law, at least when the publisher intends that those books help people commit crimes. This “speech act” rationale goes something like this. If the speech in question is an integral part of conduct that the government otherwise is empowered to prohibit, it typically may be proscribed, since it is merely incidental that such “conduct” takes the form of speech.

(b) The Supreme Court described Giboney as supporting the proposition that “[a] man may be punished for encouraging the commission of a crime.” The Court cited as an example a 1915 case that upheld the punishment of a newspaper editor who endorsed nudism.

(c) Some courts have recently used Giboney to defend restrictions on doctors’ recommending medicinal marijuana to their patients.

(d) Courts have similarly used the “conduct not speech” argument to justify restricting speech that creates an offensive work environment.

(e) Judges have relied on Giboney to support restrictions on speech that urges political boycotts aimed at pressuring governments to change their policies.

(f) The dissent in Cohen v. California cited Giboney to argue that wearing a jacket containing the phrase “Fuck the Draft” should be constitutionally unprotected: “Cohen’s absurd and immature antic . . . was mainly conduct and little speech.”


These applications of Giboney seem confusing. This might be because the logic of Giboney itself is pretty confusing, and inconsistent with the logic of the more recent Supreme Court cases like Cohen, Brandenburg , and Claiborne Hardware. In particular, there are at least three different interpretations of Giboney’s ambiguous language that might bear on O’Nan’s first amendment claim, but none of them makes much sense.


1. “Course of Conduct” Referring to the Noncommunicative Harms of Speech


Modern Supreme Court case law has recognized a sort of conduct/speech distinction. Speech may be restricted because of harms flowing from its noncommunicative component (noise, obstruction of traffic, etc.)–which we might think of as a “conduct” element–but not because of harms flowing from its communicative component, the “speech” element. But this can’t be the distinction Giboney or the above cases that cite Giboney are using, or that could justify O’Nan’s conviction, since those cases all involve speech that’s restricted because of harms that flow from its content.


2. Illegal Course of Conduct Meaning Speech that Itself Violates a Law


Maybe we could explain the opinions that rely on Giboney by reasoning that the speech itself–picketing to achieve a certain result, publishing a book describing how to commit a crime, threatening hunters to stop them from using the forest road–violates a law, and in that sense becomes an illegal “course of conduct.” On this theory, speech that amounts to the commission of an independently illegal act, such as bribery, perjury, and some threats, is constitutionally unprotected because it “is properly treated as action, even if it consists solely of words.”

But the point of modern First Amendment law is that speech is often protected even though it violates a law restricting it. Public profanity (as in Cohen ), speech that violated a Sedition Act , and speech “encouraging the commission of a crime” (as in Cox ) would indeed be illegal courses of conduct under laws that prohibit such speech. Such laws, though, are obvious speech restrictions, and courts rightly evaluate them–and often strike them down–under the First Amendment.

A threat is no less speech, and no more action, than was speech that violated the Sedition Act. A threat is speech in a particular context, such as the beliefs O’Nan had about her property rights, but it is still communication that is punished because of what it communicates. Certain kinds of threats are clearly punishable, but only because they fall within an exception to free speech protection and not because they are somehow not speech.


3. Illegal Course of Conduct Meaning Speech That Violates a Generally Applicable Law


O’Nan’s conviction, like many cases the Giboney line, might best be explained on the grounds that the speech violates a generally applicable law that bans a wide range of conduct.183 On this interpretation, speech should be treated as conduct when it has the same harmful effects and it is covered by a generally applicable law that restricts all conduct that has those effects. This sort of argument, though it would support the application of the road-blocking rule against O’Nan, would reduce the Giboney principle to an approval of speech restrictions that are content-based as applied.

This point is not a trivial one. Such an interpretation of Giboney cuts against the very purpose of the content based / content neutral distinction: allowing content-based restrictions (whether facially content-based or content-based as applied) is likely to burden speech more than allowing content-neutral restrictions. Because a content-neutral law – for instance, a leafleting ban — can potentially apply to a wide range of speakers, it can’t even come close to driving certain views entirely from public debate.

On the other hand, a content-based restriction, whether facially content-based or content-based as applied, can outlaw most expression of certain facts or opinions. If a law, such as the laws in Schenck v. United States or NAACP v. Claiborne Hardware Co. , bans any conduct that may cause a certain harm, and persuading people to act in certain ways can cause that harm, then any viewpoints that have the potential for such persuasion–the draft is evil, blacks should boycott white-owned businesses– would largely be prohibited. Because the law focuses either on the content of the speech or on the harm that the speech causes, it can block the speech in all media. O’Nan could not persuade hunters not to use the road in any way – she could not send this message with pamphlets, or on the radio. She could not write it on a billboard or post it on a blog. Her message would always be illegal, because it could have the effect of discouraging the use of the road.

The Court has confronted cases where a law was content-based as applied. In these cases, either the Court held that the speech was constitutionally protected, or–if it held otherwise–the decision is now viewed as obsolete.

The Court’s the World War I-era cases Debs, Frohwerk, and Schenck, upheld the criminal punishment of antiwar speech. In those cases, the defendants’ statements had violated a generally applicable provision of the Espionage Act, which barred all conduct–speech or not–that “willfully obstructed the recruiting or enlistment service of the United States.” These cases are now generally seen as wrongly decided. Under modern First Amendment law, courts would overturn convictions for antiwar leafleting or speeches, and would treat the law as content-based, because it is the content of such antiwar speech that causes the interference with the draft.

More broadly, if generally applicable laws were immune from First Amendment scrutiny, the government could suppress a great deal of speech that is currently constitutionally protected, including advocacy of illegal conduct, praise of illegal conduct, and even advocacy of legal conduct. For example, a general ban on “assisting, directly or indirectly, conspiracies to overthrow the government” could prohibit advocacy of overthrow as well as physical conduct like making bombs: Advocacy could assist by persuading people to join the rebellion. A ban on “assisting interference with the provision of abortion services” could ban speech that praises or defends anti-abortion blockaders or vandals, and not just actual blockading or vandalism. A ban on “conduct that interferes with the enforcement of judicial decrees” may be applied to speech that criticizes judges or judicial actions, on the theory that such criticism may lead people to lose respect for courts and thus to disobey court orders.

The speech in these examples, like O’Nan’s speech, could bring about the harms that the generally applicable law is trying to prevent. O’Nan’s speech may interfere with the use of the road, an effect that is unquestionably punishable if it were brought about by a giant tripod structure rather than communication. But the idea behind the rejection of Schenck, and of the adoption of the Brandenburg v. Ohio rule , is that the government must generally tolerate speech even when its persuasiveness or the informational content could lead to eventual harm.

Similarly, in NAACP v. Claiborne Hardware Co. the Court held that speech constituting tortious interference with business relations may nonetheless be constitutionally protected. Tortious interference covers a variety of conduct, not just speech. But when the interference flows from the persuasive or informative effect of speech–for instance, when the speech in Claiborne Hardware persuaded people to boycott a business, publicized the names of people who weren’t complying with the boycott, or persuaded others to ostracize people who refused to join the boycott– courts treat the tort as a speech restriction.

In short, O’Nan faces an uphill battle. Her speech did not express a view on a topic of public debate. Rather, she made a purposeful threat that misrepresented the law and interfered with a public right. Because her threat was likely to have the same harmful effects as a physical impediment blocking the road, the court will probably classify her speech as an illegal course of conduct.

O’Nan’s best argument is that because the regulation is content-based as applied to her, it should be presumptively unconstitutional, just as facially content-based laws are presumptively unconstitutional. Her speech does not fall clearly into an exception to protection, so the presumption may only be rebutted if the restriction passes strict scrutiny. But generally speaking, when a law punishes speech because its content may cause harmful effects, that law should be treated as content-based.