Pleasant Grove City, Utah v. Summum (07-665), Pacific Bell Telephone Co. d/b/a AT&T California v. linkLine Communications (07-512) and order list

March 2, 2009 Supreme Court Update

Greetings, Court fans!
I'm back to bring you the remaining two decisions and order list.
In its second First Amendment decision of the week, Pleasant Grove City, Utah v. Summum (07-665), the Court considered the distinction between government support/restriction of private speech (subject to scrutiny under the free speech provision of the First Amendment) and government speech (to which free speech analysis is inapplicable). The facts: Pioneer Park in Pleasant Grove City contained at least 11 permanent monuments donated by private parties, including a monument of the Ten Commandments. Summum, a religious group that believes that Seven Aphorisms were handed down by God before the Ten Commandments, sought permission to donate a Seven Aphorisms monument to be erected in the park. The City refused, and Summum sued for a preliminary injunction, which the District Court denied. The Tenth Circuit reversed, ordering the City to erect the monument immediately, but the Court reversed right back. In an opinion by Justice Alito, for all but Justice Souter, the Court explained that the City's acceptance of certain monuments for display constituted "government speech," rather than governmental facilitation of "private speech in a public forum." While private parties may have donated some of the park's monuments, the City effectively controlled their message by exercising final approval over their selection and choosing only those monuments that presented the image the City wished to project. The Court found an essential difference between a monument, which endures and therefore must be limited, and vocal speech, which is transient and can be accommodated in a near-unlimited way in public forums such as parks. If the City was forced to choose between accepting all monuments (as would be required if parks were considered a public forum for the purpose of erecting monuments) and accepting none, it would inevitably be forced to refuse all such donations. "And where the application of forum analysis would lead almost inevitably to closing of the forum, it is obvious that forum analysis is out of place." Of course, having concluded that the monuments at issue were "government speech," the court opened up an Establishment Clause can of worms – which it did not resolve.
Justice Stevens (joined by Justice Ginsburg) concurred to express concern with the "doubtful merit" of the relatively new "government speech" doctrine. He would instead have characterized the speech as an implicit endorsement of the donor's message and reached the same result. He also noted that while "government speech," is not subject to review under the First Amendment's free speech provision, it is constrained by the Establishment and Equal Protection Clauses. Justice Scalia (joined by Justice Thomas) wrote to comfort the City which it knew was concerned with going "from the Free Speech frying pan into the Establishment Clause fire." Not to worry, said Scalia: under Van Orden v. Perry, the Ten Commandments have a historical, even secular, meaning, and the City can monumentalize this meaning without fear that it is complicit in an establishment of religion. Justice Breyer also wrote separately because he worried that the "government speech" doctrine would become a rule of thumb, rather than a flexible category. A purposive approach would be better, he opined, since if, for example, a government selected monuments solely on political grounds, this would violate the First Amendment. Finally, Justice Souter, concurred in the judgment only. He also voiced concern that "government speech" was rushing too quickly towards becoming a categorical or per se rule. He cautioned the Court to slow down, and suggested a "reasonable observer" test, rather than a rigid rule exempting the government too quickly from scrutiny, in cases involving tensions between government speech and the Establishment Clause.
Turning from the First Amendment to antitrust, in Pacific Bell Telephone Co. d/b/a AT&T California v. linkLine Communications (07-512), the Court rejected a Section 2 monopolization claim premised on a "price squeeze" theory – i.e., where a vertically integrated firm sells inputs at wholesale and also sells finished goods or services at retail, but is under no antitrust duty to sell the wholesale inputs to its competitors in the retail market. Plaintiffs were four independent Internet service providers that competed with defendant AT&T in the retail DSL market. Plaintiffs did not own the facilities needed to supply their customers with DSL service, and instead leased DSL transport service (the wholesale input) from AT&T. In their complaint, plaintiffs alleged that AT&T violated Section 2 by, among other things, setting a high wholesale price for DSL transport and a low retail price for DSL internet service, in order to "squeeze" its retail DSL competition. The district court denied AT&T's motion to dismiss plaintiffs' "price squeeze" claim, and certified its decision for an interlocutory appeal. The Ninth Circuit affirmed.
The Court reversed. Chief Justice Roberts authored the majority opinion explaining that plaintiffs' "price-squeeze" claim lay at the intersection between two of the Court's precedents: Verizon Communications v. Law Offices of Curtis V. Trinko (2004) (holding that a firm with no antitrust duty to deal with its rivals at all is under no obligation to provide those rivals with a "sufficient" level of service); and Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. (1993) (setting the standard for predatory below-cost pricing). Dissecting the "price squeeze" claim into its composite parts, the Chief held that any challenge to AT&T's wholesale prices was barred by Trinko, while any challenge to AT&T's retail prices was governed by Brooke Group. Thus, the plaintiffs' price squeeze claim "is nothing more than an amalgamation of a meritless claim at the retail level and a meritless claim at the wholesale level." Because "[t]wo wrong claims do not make one that is right," the Court reversed and remanded for a determination whether plaintiffs should be permitted to amend their complaint to include allegations of predatory pricing under Brooke Group. (Oddly, plaintiffs had shifted gears before the Court and conceded that their claims had to meet the Brooke Group test for predatory pricing to go forward, but the Court concluded the case was not moot because the parties sought different relief and it was not clear whether plaintiffs had wholly abandoned their price squeeze claims. The majority was also persuaded that deciding the case was prudent because it would resolve a circuit split on the issue.) Justice Breyer, joined by Justices Stevens, Souter and Ginsburg, concurred in the judgment only. They would have accepted plaintiffs' concession that the Ninth Circuit decision was incorrect and remanded to the district court for consideration of plaintiffs' motion to amend the complaint to assert a predatory pricing claim – without attempting to answer the "hypothetical questions" before the Court.
The Court also granted cert in the following 6 cases:
Alvarez v. Smith (08-351), where the Court granted cert limited to Question 1: "In determining whether the Due Process Clause requires a State or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the ‘speedy trial' test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972) or the thee-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976)?"
The next case, Salazar v. Buono (08-472), is an appropriate follow-up to this week's decision in Pleasant Grove. Salazar deals with a cross erected by the Veterans of Foreign Wars ("VFW") as a memorial to fallen service members on what is now a federal preserve. After the district court held that the cross on federal land violated the Establishment Clause and enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The district court then enjoined the government from implementing the Act of Congress, and the court of appeals affirmed. The questions presented are: "(1) Whether respondent has standing to maintain this action where he has no objection to the public display of a cross but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols. (2) Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing the transfer of the land to private hands."

Padilla v. Kentucky (08-651) (yes, Jose Padilla, but not the one you're thinking of), presents two questions for review: "(1) Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an ‘aggravated felony' under the INA, is a ‘collateral consequence' of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and, (2) Assuming immigration consequences are ‘collateral,' whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by the faulty advice."

Union Pacific Railroad v. Brotherhood of Locomotive (08-604), involves the authority of courts to set aside an arbitration award under the Railway Labor Act ("RLA"), 45 U.S.C. § § 151 et seq. The RLA provides that the Board's judgment shall be conclusive except for : (1) "failure... to comply" with the Act, (2) "failure.... to conform or confine" its order "to matters within... the [Board's] jurisdiction," and (3) "fraud or corruption" by a Board member. The questions presented are: "(1) Whether the Seventh Circuit erroneously held . . . that the RLA includes a fourth, implied exception that authorizes courts to set aside final arbitration awards for alleged violations of due process. (2) Whether the Seventh Circuit erroneously held that the Board adopted a ‘new' retroactive interpretation of the standards governing its proceedings in violation of due process."

Smith v. Spisak (08-724), which asks: "(1) Did the Sixth Circuit contravene the directives of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and Carey v. Musladin, 127 S. Ct. 649 (2006), when it applied Mills v. Maryland, 486 U.S. 367 (1988), to resolve in a habeas petitioner's favor questions that were not decided or addressed in Mills? (2) Did the Sixth Circuit exceed its authority under AEDPA when it applied United States v. Cronic, 466 U.S. 648 (1984), to presume that a habeas petitioner suffered prejudice from several allegedly deficient statements made by his trial counsel during closing argument instead of deferring to the Ohio Supreme Court's reasonable rejection of the claim under Strickland v. Washington, 466 U.S. 668 (1984)?"

Johnson v. United States (08-6925), where the Court granted cert limited to Questions 1 and 2: "(1) Whether, when a state's highest court holds that a given offense . . . does not have as an element the use or threatened use of physical force, that holding is binding on federal courts in determining whether that same offense qualifies as a ‘violent felony' under the federal Armed Career Criminal Act, which defines ‘violent felony' as, inter alia, any crime that ‘has as an element the use, attempted use, or threatened use of physical force against the person of another.' (2) Whether this Court should resolve a circuit split on whether a prior state conviction for simple battery is in all cases a ‘violent felony' . . . [under the ACCA]. Further, whether this court should resolve a circuit split on whether the physical force required is a de minimis touching . . . or whether the physical force required must be in some way violent in nature -that is the sort of force that is intended to cause bodily injury, or at a minimum likely to do so."
Finally, the Court asked the SG to weigh in on two cases:

Federal Insurance Co. v. Saudi Arabia (08-640), where the Court would address the viability of lawsuits seeking to hold foreign governments and foreign officials and individuals liable for providing funds to support the 9/11 terrorist attacks on the U.S.
American Needle, Inc. v. National Football League (08-661), which would address the potential liability of the National Football League and its member teams for alleged antitrust violations in the marketing of clothing and headwear decorated with team logos and trademarks.

The Court likely will issue more decisions this week, so we'll be back in your inbox soon!

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400