Lawsplainer: Our Three Most Recent Supreme Court Decisions
Photo by Phil Roeder, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons
Leaves are growing back on the trees, daffodils are blooming, noses are running, eyes are watering. This can only mean one thing: Allergy and SCOTUS opinion seasons are starting to ramp up. In an effort to get back to contributing more to this wonderful place, here’s a rundown of recent edicts from the high bench:
The short and sweet of Lindke: Public officials can be held liable for civil rights violations for blocking criticism on their social media accounts under certain circumstances.
As you probably can guess, “under certain circumstances” is the important part. In the underlying case, Freed was the City Manager for Port Huron, Michigan since 2014. His Facebook page identified him as such, and he often posted about official business. He dealt with a very vocal critic, Mr. Lindke, first by deleting his comments and later by blocking him altogether. Lindke filed a Section 1983 lawsuit, alleging a violation of his civil rights, specifically his rights under the First Amendment.
The Court’s 9-0 ruling, authored by Justice Barrett, imposes a two-part test: 1) whether the official had authority to speak on the government’s behalf, and 2) “purported to exercise that authority” through the social media account in question. These two prongs are necessary in order to show the official is speaking in his capacity as an agent of the government, because 1983 violations require that the alleged violation be done “under the color of law.”
Freed tried to insist that his Facebook page was strictly personal and both the lower court and the Sixth Circuit agreed. But the Supreme Court pointed out the many ways in which his professional life was intermingled with posts about his family and dog. Freed often posted about his activities as city manager, and even asked for feedback on municipal matters. The Court, however, stopped short of making a determination that Freed had violated Lindke’s rights; instead, the case was remanded for redetermination under the test outlined by the Court.
O’Connor-Ratcliff et al v Garnier:
OK, I said three cases and I didn’t technically lie, but O’Connor-Ratcliff et al v Garnier really doesn’t count – it’s a 3 page per curiam companion case to Lindke, illustrating a circuit split SCOTUS resolved. In this case, the officials were members of the Poway United School District’s Board of Trustees and operated social media accounts identifying themselves as such. They, too, blocked critics – though in their case it bordered on harassment; a husband and wife duo posted “nearly identical comments on 42 separate posts on O’Connor-Ratcliff ’s Facebook page and 226 identical replies within a 10-minute span to every tweet on her Twitter feed.” In the ensuing First Amendment suit, the 9th Circuit ultimately found in the couple’s favor, holding that the official’s actions were “under color of law” and allowing the suit to proceed. Because the 9th Circuit was not following the test set forth in Lindke, the case was remanded for reconsideration.
Pulsifer v United States
I’m about to atone for the brevity of Case No. 2. In the longest of their three opinions, A 6-3 SCOTUS undertakes a tortured examination of the meaning and function of the word “and”.
At issue is the so-called “safety valve” provision of the First Step Act, relating to the imposition of mandatory minimum prison sentences for drug offenders. The safety valve is intended to provide discretion to defendants with less serious criminal histories, who would otherwise be subject to the mandatory minimums.
The provision, found in paragraph (f) of 18 USC Section 3553, states a sentencing court may consider deviation from the mandatory minimums if, in addition to 4 other provisions not at issue in this case,
“(1)the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines”
Before you read on, consider the above and ask yourself how you would interpret this provision.
The defendant in the case, Mark Pulsifer, interprets the statute to mean a defendant is eligible if he doesn’t have A, B, and C; stated conversely, a defendant is eligible unless he has all three. Pulsifer had two previous 3-point offenses, but no 2-point violent offense, and thus, he argued, he was eligible for application of the safety valve. The crux of the argument is that the word “and” at the end of (B).
The government disagrees and contends that the existence of any one of the three provisions in a defendant’s background would render him or her ineligible. The government imagines the phrase “does not have” at the beginning of each clause: The safety valve applies if Defendant does not have more than 4 criminal history points, does not have a prior 3-point offense, and does not have a prior 2-point violent offense.
In a 6-3 opinion written by Justice Kagan and joined by Justices Roberts, Thomas, Alito, Kavanaugh, and Barrett, the Court adopts the government’s position. Both concede that the statute, as written, could be read the way the Pulsifer advocates, and the Court thus turns to contextual cues to resolve the conflict. They note that to require the existence of all three conditions before deeming a defendant ineligible would render (A), the existence of 4 cumulative prior history points, superfluous; if one had the two 3-point offenses listed in (B), let alone a combination of that and the 2-point offense of (C), they necessarily would have more than 4 total points, making the existence of (A) unnecessary.
The dissent is authored by Gorsuch joined by Sotomayor, as he so often is in matters of criminal law, and Justice Jackson. Gorsuch adopts Pulsifer’s interpretation as the one most naturally read into the statute as written.
Furthermore, Gorsuch disagrees that (A) is superfluous under Pulsifer’s reading. and lays out quirks of sentencing guideline application that illustrate circumstances in which a defendant could have a 3 point offense and a 2 point violent offense, but not have 4 previous points. (Sentencing guidelines are weird, but Gorsuch has an excellent grasp of them. I admit to lacking the brainpower to explain it fully, but it is set forth on pages 22 and 23 of Gorsuch’s dissent, if you’re interested.)
Gorsuch begrudgingly concedes the government’s reading is also plausible, but here relies on the rule of lenity: whenever there is ambiguity in a criminal statute, it should be applied in the light most favorable to the defendant. However, the majority admits no such ambiguity, despite 9 of the alleged best legal minds in the country disagree on its meaning.
So, there you have it, our three most recent SCOTUS decisions. Whew. That last one is a mind twister to parse, and I found myself constantly shifting my opinion. In the end, I agree with Gorsuch, based on the rule of lenity.
I also agree with the Court re: public officials on social media. If they don’t want their personal accounts to be treated as the town square, they probably shouldn’t use them as such, or else they will be forced to deal with those who chose to petition their government’s Facebook account for a redress of grievances.
Re: Pulsifer v United States… My time on the permanent legislative staff in my state taught me to respect the job the bill drafters have to do. Part of every staffer’s job was to watch for errors and ambiguities that had slipped in. I was on the budget staff, and while we primarily looked at bills that spent money, someone in the group read every single bill. It was one of those things that wasn’t in the job description but still chewed up time. Language that was wrong, or at least problematic, was referred back to the responsible party in Legislative Legal Services, who would make the final call on whether changes were necessary.
One of the very last bills introduced each session was the Revisor’s Bill. It contained fixes like this bill needed. In the 2019 session, the Revisor’s Bill fixed 73 problems, mostly by making small simple changes to the text.
Of course, as the staff regularly noted over lunch or drinks, compared to Congress the General Assembly was highly functional.Report
In New Zealand we have a dedicated team of lawyers, The Parliamentary Counsel’s Office, to draft laws. They also have a representative on every select committee to recommend technical amendments to bills.Report
Lindke v Freed: Didn’t we make a *HUGE* deal about Trump blocking people on Twitter? Have we forgotten that already?
Pulsifer v United States: We need a PEMDAS for law. Oh, and lawmakers capable of writing a word problem where PEMDAS is acknowledged and legible.Report
The decisions in Lindke and O’Connor-Ratcliff et al v Garnier mean that all government organizations need to start locking comments and replies to their posts, because it’s now considered a civil-rights violation to delete things.
Although it does speak to how thoroughly social-media companies have dumped the task of moderation on users. One would think that posting “226 identical replies within a 10-minute span to every tweet on her Twitter feed” is misuse of the system that would be flagged by the administrators, but apparently that’s just something users are supposed to handle themselves.Report
That sentencing guideline would make much more sense to me if the “and” were an “or” instead. With an “and”, it’s a hot mess. Who can say what was intended, though?Report
Yeah. ~(P ∧ Q ∧ R) versus (~P ∧ ~Q ∧ ~R).
One of the best ways to get dumb math engagement on the twitter is to ask a poorly formatted math question and you can get the PEMDAS people versus the pre- and post-PEMDAS people screaming at each other.
“The answer is obviously 1!”
“The answer is obviously 16!”
Meanwhile, big 8/2(2+2) stands laughing.Report
Would have been easy to say “defendant is ineligible for [safety valve] if any of the following (or all of, depending on intent) apply.”
Problem solved.Report
I dunno. At first I thought “well obviously it should be OR”, but the more I think about it the more I’m coming around to the dissent side on that one. Because the majority dismisses the “superfluity” argument but it really does apply here.
So if it’s “OR”, that means the statute can be read as “any one of these three conditions will make you ineligible for the safety-valve”, which renders the first provision superfluous; because it specifically excludes one-point convictions it means there’s no way to get to four relevant-for-the-purpose-of-this-statute points in your criminal history record without having at least one three- or two-point conviction, and the “or” means having at least one three- or two-point conviction makes you ineligible for relief.
I find the dissent’s argument to be very strong, actually, because of the word “prior” written in the latter two provisions of the statute, implying that they apply regardless of the time since the conviction occurred. Really, the statue was written poorly because it doesn’t address very strongly the fact that criminal history sentencing guidelines involve a time element.
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It’s a little difficult to opine on this just from the Supreme Court opinions because they don’t provide details of the offenses in question, so we can’t determine whether Pulsifer’s two three-point convictions were “in date” or not (although the fact that there’s a court case implies that at least one was not.)Report
Yeah, the part of the 1st bullet that excludes 1-point offenses doesn’t make any sense under either the AND or the OR interpretations. I think that the AND interpretation is less plausible as an “intended” meaning since it has the bizarre outcome that someone with two 3-pointers on their record would be eligible but someone with a 3 & a 2 would not be… but overall this isn’t a case where it’s obvious what the drafters were aiming for and they just goofed on the wording. I agree that the dissent seems to have the better of it, the more so given that even with eligibility, the actual granting of the relief in a given case is still at the judge’s discretion.Report
The majority actually adopts the superfluity argument; it’s the dissent that rejects it. Reading the opinion is a mind twister. Every argument seems to cut both ways.Report
When I was a legislative staffer I kept a short list of statutes that I’d encountered that struck me as “How the hell did this rather confusing mess get strung together?” During the summer interim between sessions I dug through the history of the text from the beginning through various later changes. (One summer I was the legislative librarian’s favorite staffer because I stopped by her facility in the Capitol sub-basement at least once each week with another request.)
I don’t know if this particular section was (somewhat) poorly drafted initially, or if there was an accumulation of cruft. I’m not curious enough to try to find out, either, since no one’s paying me.Report