Supreme Court Roundup: October Term 2018 [SCOTUSbrief]
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Supreme Court Roundup: October Term 2018 [SCOTUSbrief]


This was an interesting term. Not as many blockbusters, necessarily, as-as
in past years, but plenty to chew on, and there are individual videos about the-the
biggest cases. I want to talk about three others that might
get overlooked. Knick was the biggest property rights case
of the term, probably the biggest property rights case in some time. Even though it was a procedural case, that
is, it was about whether you have to first go to state court to bring your claim that
the local government has taken your property in violation of the Fifth Amendment, or whether
you can go straight to federal court. Rose Mary Knick said that we shouldn’t treat
property rights like second-class rights. If the local government is censoring your
newspaper or the police are banging into your home without a warrant, you don’t have to
go to state court to pursue your remedies before you make your First Amendment or Fourth
Amendment claims, respectively, in federal court. But the way that takings claims work, because
of this doctrine as it’s developed over time and crystallized in the Williamson County
case in 1985, you first have to go through the state process, and then, if your claim
hasn’t been vindicated, you haven’t been given just compensation, then you, perhaps, can
get into federal court. Mrs. Knick was saying, “This is not fair. It violates my Fifth Amendment rights. Why don’t I get my day in federal court? Williamson County was wrong.” The township argued that there is no violation
of Mrs. Knick’s constitutional rights until and unless they actually denied her just compensation,
and the state court proceedings were precisely to determine whether this was a taking that’s
subject to the just compensation requirement and then figuring out the amount of that compensation. This was one of the handful of cases this
term where a previous decision of the Supreme Court was overruled, and so, naturally, we
go back to this argument back and forth over stare decisis. Justice Kagan in dissent said that the court
was overturning not just Williamson County, but over a century of property rights jurisprudence. Chief Justice Roberts for the majority said,
“No, no, no. Those older cases are still valid. All this is saying is that if there’s a taking,
you can sue right away.” Return Mail versus the United States Postal
Service is a case that raises the key statutory interpretation issue of whether the government
or a government agency is a person for purposes of the America Innovates Act, for purposes
of challenging a patent, or, uh, related issues. And secondly, whether there are separation
of powers concerns that are raised when an agency of the executive branch seeks to challenge
the determination of another agency, here the Patent and Trademark Office. Return Mail is a small company that owns a
patent on processing mail that’s returned as undeliverable. Return Mail tried to get that patent licensed,
uh, to the U.S. Postal Service. The Postal Service refused, and instead, sued
in the Patent and Trademark Office to get that Return Mail patent invalidated. It seems odd to have the executive branch
suing itself. It’s one thing to have the House of Representatives
suing the administration, but to have a lawsuit within the same branch of government defies
the logic of the separation of power. It’s something odd and not really provided
for in our constitutional structure to have one agency, here the Postal Service, challenging
or asking a court to second guess the determination of another agency, the Patent Office. And the court ruled six to three that under
the AIA, the government, or a government agency is not a person that can intervene in the
disputes over the validity, uh, of a patent not needing to reach the separation of powers
question, but, indeed, that it would be an odd thing to allow one part of the executive
branch to sue another. Manhattan Neighborhood Network is a public
access channel operator that got permission from Time Warner to run the public access
programming. Under federal law, when you’re a broadcaster
you have to give certain parts of your cable network over to public access, locally-produced,
uh, content. After Halleck and another filmmaker made a
film, uh, critical of the Manhattan Neighborhood Network itself, after that were-were banned
from the public access channel. Halleck argued that because Manhattan Neighborhood
Network got the power to decide who gets access through the public access facility, uh, they
were acting as the government, as a state actor. When the government acts in a way that, uh,
discriminates based on viewpoint, that’s a First Amendment problem. Manhattan Network’s argument was that it was
not an arm of the government. Nobody told it, neither Time Warner, let alone
New York state, or the city, or anyone else, what to broadcast. In the past, private actors, whether, uh,
companies or individuals have only been held liable for First Amendment violations if they’ve
been working directly for the government at its command, not as a licensee, and that’s,
ultimately, what swayed the court here. This was a five to four decision holding that
Manhattan Neighborhood Network was not a state actor, because it was not a public broadcaster. Just because they were allowed to use the
public access channel and determine what kind of content was there did not mean that the
government was making those kinds of content or viewpoint-based decisions.

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