Nate Kaczmarek: Well, good afternoon. I am pleased to welcome you to our latest installment of "A Seat at the Sitting." Today's program will preview the April Supreme Court docket in 90 minutes or less. My name is Nate Kaczmarek, and it is my privilege to serve the society as vice president and director of practice groups. As always, FedSoc does not engage in advocacy and all expressions of opinion belong to our guests today. We are lucky to have a great panel with us and as well an excellent moderator in Anastasia Boden. Anastasia is currently on maternity leave, so we are especially grateful for her willingness to join us. Anastasia, congratulations on your newest addition and I guess the most important question of the day is, are you getting any sleep?
Anastasia P. Boden: No. And I'll use that for an excuse for anything I say here that people don't like.
Nate Kaczmarek: Well, I'd venture that a sleep deprived Anastasia Boden is better than most with a full eight. So we are grateful for your willingness to be here. I'll introduce her quickly and we'll move on with the program. Before CATO, Anastasia was a civil rights attorney at the Pacific Legal Foundation. She has represented entrepreneurs and challenges to occupational licensing laws, anticompetitive titling restrictions, and certificate of need programs. She is the cocreator of the popular podcast Dissed which tells the stories behind infamous Supreme Court dissents. Her undergrad was at the University of California Santa Barbara, and she holds a JD from Georgetown. For full bios of all of our guests today, you can -- they're all available on our website or in the announcements that we sent out for the program.
In a moment I'll hand it off to Anastasia. Once you have reviewed -- once we've reviewed the April cases, we'll go to audience Q&A. So please think of the difficult questions you'd like to send their way. Questions can be submitted via the Zoom Q&A function, and we will answer as many of those questions as we have time for. With that, Anastasia, thank you very much. The floor is yours.
Anastasia P. Boden: Well, thanks Nate for your very kind words and thanks to everyone here for joining us as we savor the last few months of the Supreme Court term before the justices break for summer and in particular as we enjoy this last month of oral arguments for the term. I'm sorry that I seem to be losing my voice this morning, but the show must go on. The people demand to hear about the Court so I'm happy to be here and serve as your humble moderator.
The April sitting will bring cases regarding sovereign immunity for Indian tribes, free speech and true threats, religious accommodations in the workplace, governmental theft of home equity, allegations of security fraud, and a surprisingly interesting case under the False Claims Act. We will discuss it all here today as Nate promised in 90 minutes or less. After our four speakers offer their thoughts on the cases, we'll open it up for question and answers. So please don't be shy with that. It makes the conversation much more interesting to hear from you all. Go ahead and type your questions using the question-and-answer feature on Zoom. So without further ado, I'll introduce our four speakers in the order that they will be speaking today.
Tom Gede is counsel at Morgan, Lewis & Bockius LLP where he consults on a variety of legal and policy matters for public and private clients. A former senior deputy in the California Attorney General's office, Tom has argued cases in the U.S. Supreme Court, the California Supreme Court, and multiple lower courts. Tom has a national reputation in federal Indian law. In 2016 he was elected as a member of the ALI and served as an advisor on the third restatement of the law of American Indians. It should therefore be no surprise that today Tom will be discussing Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin which involves sovereign immunity for Indian tribes.
Next, we'll hear from Brian Hauss. Brian is a Senior Staff Attorney with the ACLU's Speech, Privacy & Technology Project where he focuses on free expression. Since joining the ACLU in 2012, Brian has litigated cases defending the First Amendment rights of writers, journalists, media organizations, activists, advocacy groups, labor unions, and private citizens. Brian is a 2021 - '22 Wasserstein Public Interest Fellow at Harvard Law School and a graduate of Yale University and Harvard Law School. He was a clerk to Judge Marsha S. Berzon of the United States Court for the Ninth Circuit. And Brian will be discussing Counterman v. Colorado involving, naturally, the First Amendment right of free speech.
Third, we'll hear from Sharon Fast Gustafson, the immediate past general counsel of the Equal Employment Opportunity Commission. Sharon graduated with honors from Georgetown Law Center -- Hoya Saxa, Sharon -- and since then she has concentrated her practice on employment law. She successfully litigated a pregnancy discrimination case, Young v. UPS, at the Supreme Court. In 2016, she received the Metropolitan Washington Employment Lawyer's Association's lawyer of the year award in recognition of outstanding dedication to civil rights, equality, and justice. She will be discussing Groff v. Dejoy and religious accommodations under Title VII.
Last but not least, we'll hear from Professor Ilya Somin, law professor at George Mason University. His research focuses on constitutional law, property law, democratic theory, federalism, migration rights, and much, much more. He is a prolific writer having authored multiple books and is a frequent blogger on all of these topics and more. He's one of the first to respond when something comes up and I always check for Ilya's opinion. Ilya earned his JD from Yale Law School, his MA in political science from Harvard, and his BA summa cum laude from Amherst. He clerked for Judge Jerry Smith on the Fifth Circuit Court of Appeals. It is also probably incumbent upon me to mention he is the B. Kenneth Simon Chair in Constitutional Studies at the CATO Institute where, of course, I also work. Ilya, my new colleague, will be discussing a case being litigated by my former colleagues at the Pacific Legal Foundation, Tyler v. Hennepin.
After our speakers conclude their remarks, I'll briefly summarize two cases that haven't elicited as much attention or did not elicit volunteer speakers, Slack v. Pirani, which asks what plaintiffs must plead in cases under the Securities Act of 1933 and Schutte v. SuperValu involving when companies really know they are knowingly bringing false claims under the False Claims Act. So with that, I will leave it to you, Tom. Take it away.
Thomas F. Gede: Thanks very much, Anastasia and thank you, Nathan and to The Federalist Society for these informative webinars. My examination of the Court's docket this term will focus on just one of several cases involving American Indian tribes and what we call federal Indian law. And these cases range from child welfare laws to one examining whether the federal government has a trust responsibility under a particular treaty to provide water or access to water for tribes and whether that's a fiduciary duty or a treaty obligation and whether they differ. Also while the Court has not taken head on direct challenges to their 2020 decision in McGirt v. Oklahoma that held Indian reservations in Eastern Oklahoma were never disestablished, other cases have rippled out from McGirt including last year's Oklahoma v. Castro-Huerta. There the Court held that the federal and state governments have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians on tribal land in Indian country as defined by the criminal code.
Now the Court's facing another case. One that mixes or tests the overlap of federal Indian law and federal bankruptcy law. On the 24th of April, the Court will hear Lac du Flambeau Band of Lake Chippewa Indians v. Coughlin number 22-227. To question presented is whether the bankruptcy code unequivocally expresses Congress's intent to abrogate the sovereign immunity of American Indian tribes. So while it may appear to involve uniquely developed federal Indian law doctrines and an undermining potentially of tribal sovereignty, it's maybe more an unremarkable case of statutory interpretation, how to read the text, and find it adequate to abrogate tribal sovereign immunity or not. Not that it's not a big deal. It is just likely more narrowly addressed to just this statute and may not be terribly consequential on the doctrinal development of federal Indian law.
The bankruptcy code, as you may know, includes a sweeping abrogation of the immunity from lawsuit normally enjoyed by government entities. This abrogation is designed principally to restrain those entities and to allow for them to be enjoined during the pendency of a bankruptcy proceeding under the automatic stay provision for good reason, you might say. Certainly, the debtors want relief from all creditors hounding them, but more importantly, the stay provision allows the bankruptcy court to sort out and sift through the claims and creditors rights without interruption and bring a resolution to the matter as the law permits and requires.
While most people usually don't think of it, a government entity may appear in a bankruptcy matter for a variety of purposes. As a priority tax creditor or as a secured creditor, an unsecured creditor, a landlord, guarantor, bondholder, or leaseholder among other possibilities. And as the SG points out, the United States is the nation's largest creditor. So to ensure compliance with the overarching federal bankruptcy law and to enforce its automatic stay provision, Congress included an express abrogation of the sovereign immunity of government units. The debate today is this, does that abrogation reach federally recognized Indian tribes?
In this case, the tribe owns through its subsidiaries a consumer loan business called Lendgreen which is a great name -- Lendgreen -- which loaned money to Brian Coughlin. However, not long after, Coughlin filed for bankruptcy under chapter 13 after which Lendgreen repeatedly sought to collect the debt from him, something the automatic stay provision prohibits and penalizes. Coughlin named Lendgreen and the band in an action to enforce the bankruptcy codes automatic stay provision and for its provision for damages, costs, and attorney's fees whenever the automatic stay is violated.
Coughlin alleged facts that Lendgreen violated the automatic stay provision with its repeated collection efforts. In response, the band and its affiliates moved to dismiss the enforcement proceeding in bankruptcy court asserting tribal sovereign immunity and arguing the bankruptcy code did not unequivocally abrogate that immunity. Here, by the way, there was no issue whether the loan business is an arm of the tribe. It's a subsidiary and it enjoys the same immunity as the tribe. The bankruptcy court agreed with the tribal defendants and granted the motions to dismiss relying upon a Sixth Circuit opinion on the issue and declining to follow a Ninth Circuit opinion on the issue. However, the First Circuit 2-1 reversed the bankruptcy court and, agreeing with the Ninth Circuit, it held the bankruptcy code's language was sufficient to abrogate the tribe's immunity.
Before looking at the statutory language in the arguments we might consider whether this is just another hot case of federal Indian law that the Court, especially given Justice Gorsuch's penchant for this area of the law, develop granting cert to build new doctrine in federal Indian law. I don't think so. It's quite simply a circuit split. I'm not sure if that portends well for the band and its affiliates. While they did get their petition granted, the Court granted it in the face of multiple circuit courts of appeal diametrically opposed to each other on the question. And not likely due to the alleged wrongheadedness of two judges of the First Circuit. That's possible, of course, but let me turn to the statutory provision at issue and the legal issue concerning abrogation of tribal sovereign immunity.
As a fundamental matter, tribes enjoy immunity from suit, and that is inherent and pre constitutional. Tribes are self-governing sovereign political communities with the inherent power to prescribe laws for their members. At the same time, tribes are subject to the plenary control of Congress. Congress may abrogate tribal sovereign immunity but to do so, Congress must unequivocally express that purpose. So here the lower courts have looked to see whether the bankruptcy code in fact unequivocally expresses the purpose to abrogate tribal sovereign immunity, and we turn to the bankruptcy code. Section 106a of the bankruptcy code provides that "Sovereign immunity is abrogated as to a governmental unit." And in section 101-27, the law provides a definition that includes "The United States and a state, a commonwealth, a district, a territory, a municipality, or a foreign state, or other foreign or domestic governments." At issue is the catchall phrase, "or other foreign or domestic government."
Using reasoning similar to the Ninth Circuit in Krystal Energy Company v. Navajo Nation, the First Circuit concluded the phrase provides the requisite unequivocal abrogation of the tribal sovereign immunity. First, two judges of the Court noted that there's no real disagreement that the tribe is a government. Then turning to the term, "domestic," they concluded, relying on common understanding of terms, that tribes are domestic rather than foreign because they belong to or occur within the sphere of authority or control or the boundaries of the United States. They further noted the Supreme Court at least since 1831 has long referred to tribes as domestic dependent nations from Cherokee Nation v. Georgia -- the 1823 or 1831 -- the language of Chief Justice Marshall that is quoted in untold millions of cases and every Hornbook on federal Indian law -- domestic dependent nation.
So the petitioners -- the band and its affiliates -- argue that in this provision, Congress did not refer to Indian tribes. It doesn't mention Indian tribes. And because tribe's immunity isn't congruent with that of the federal government or the states -- the immunity they enjoy -- it would be expected that tribes would be specifically denominated if that was the purpose of Congress. The petitioners also note that whenever Congress has meant to include Indian tribes, it has done so explicitly, and here, it could've, but didn't. Chief Judge Barron of the First Circuit writing in dissent outlined these points as well. And he made the point that tribes are not similar in nature to any domestic government that is listed in 101-27 or to any foreign state. And he pointed to certain federal regulations, which it turns out are some Department of Agriculture regulations which list tribal governments alongside domestic governments. Thus he reasoned, tribal governments should be viewed separately from domestic governments. Therefore, the catchall phrase that refers to domestic governments cannot be read, in his view, to include tribal governments.
The respondent, Coughlin and the solicitor general follow the reasoning of the two-judge majority and in the Ninth Circuit in Krystal Energy noting that the statutory text points to Congress's intent to include in the bankruptcy provision all governments foreign and domestic. And the Ninth Circuit noted a logical reading of the phrase means quite literally there is no government other than foreign or domestic. They are mutually exclusive. The SG and respondent argued there is no requirement for magic words to accomplish a particular result and that that view is not inconsistent with a clear statement rule for abrogating sovereign immunity. The SG also argues that where the statutory text is clear, legislative history is irrelevant. The petitioners noted the lack of any explicit reference to tribes in the legislative history. The petitioners make the argument that the tribes stand apart from the listed government entities that trace their origins to the constitution which argument is then rebutted by the SG who correctly notes that the states do not trace their origin to the constitution.
In the end, there may be considerable argument in the Court over whether the catchall phrase "foreign and domestic government" affects an unequivocal expression of abrogation, but it looks to me like an uphill battle for the tribe and its affiliates. Listening to the argument in the First Circuit, counsel for the tribe and the affiliates simply repeated himself that Congress must specifically denote Indian tribes when abrogating the immunity of governments. Counsel was unable to answer the Court's questions on the fair meaning of the text of the statute. Often but not always, repeating your main point while not answering the Court's question is a sign you've run out of arguments. To be fair, the unique attributes of tribal governments and the importance of tribal sovereign immunity it could be argued Congress could've or maybe should've included them explicitly, but I think a good number of justices are going to view the codes text as unambiguous and complete that domestic governments include all domestic governments and tribes are among them. So time permitting and after other presenters, I'm prepared to discuss briefly this and some of the other Indian law cases before the Court and thank you very much.
Anastasia P. Boden: Thanks, Tom. Brian, tell us about Counterman v. Colorado.
Brian Hauss: Sure thing. Thanks so much, Anastasia and Nathan, and it's a pleasure to be speaking with you all. I should say in the way of full disclosure at the beginning, that I filed a brief on behalf of the ACLU, the National Association of Criminal Defense Lawyers, the National Coalition Against Censorship, and the Abrams Free Expression Institute at Yale University supporting petitioner in this case.
This case concerns the true threats exception to the First Amendment. I think most people agree that a true threat requires an objectively serious expression of an intent to commit an unlawful act of violence against a specific person or group but there's a long running debate about whether there is a subjective component to the true threats analysis. In Elonis v. United States, the Supreme Court held as a matter of statutory interpretation that the federal threat statute requires some degree of culpable mens rea on the part of the defendant, but the Court declined to address the constitutional question and also did not specify what degree of culpable mens rea is required. It could be anywhere from recklessness to specific intent to threaten.
This case is likely to address at least the first question because it is coming up on appeal from a state prosecution under Colorado's stalking statute and it might well address the second question, namely what degree of subjective intent is required if any as well. The facts of the case are these. Over a period of roughly two years from 2014 to April 2016, Petitioner Billy Raymond Counterman sent Coles Whalen, a professional musician in Colorado, a large number of messages over Facebook. Ms. Whalen never responded to these messages, but it appears that Counterman who has been diagnosed with a mental illness believed she was responding to him through public statements on other websites and Facebook pages by other groups -- essentially a sort of paranoid interpretation of Ms. Whalen's actions. Ms. Whalen never responded to Counterman, as I mentioned, but sometimes she would block him. And in response to that, Counterman would sometimes then create new profiles and continue the messages with Ms. Whelan.
Now at the beginning of these exchanges or really this stream of messages from Counterman, the messages were simply odd. They reflected one side of conversation that Counterman appeared to be having with himself, but Ms. Whelan testified that over time, she found the messages became somewhat more aggressive including statements like, "Friend, are you? You have my number. Say, I am not avoiding you. That was ought. You are not being good for human relations. Die. Don't need you." Eventually, Ms. Whelan obtained a restraining order against Mr. Counterman, but it was never actually served on him. Counterman was prosecuted under Colorado's stalking statute.
Now that statute prohibits knowingly and repeatedly making any form of communication with another person in a manner that would cause a reasonable person to suffer serious emotional distress and that does cause that person to suffer serious emotional distress. Counterman moved to dismiss the indictment under the First Amendment, but the trial court held that the statements were unprotected because they were objectively threatening and therefore fell under the true threats exception to the First Amendment. As a result, the prosecution was able to argue to the jury that Counterman's intentions in sending the messages to Ms. Whelan were irrelevant. The only thing that matters, the prosecution told the jury, is whether a reasonable person would interpret those messages as threatening and would find them to be objectively offensive.
The Colorado court of appeals affirmed the conviction, holding under Colorado precedent that a purely objective standard governs in determining whether a statement amounts to a true threat. Now the Colorado court of appeals emphasized that this is a very sensitive analysis, that it takes into account a range of different factors and contexts in determining whether a statement was objectively threatening in context, but it emphasized that it's still an objective standard and that Counterman's intentions in sending the messages were entirely irrelevant. This decision reinforced a longstanding split in authority over whether subjective intent to threaten or some other degree of culpable mens rea is a necessary element of the true threats exception to the First Amendment.
So now the Supreme Court has taken the case and seems set to decide whether subjective intent is necessary. Counterman argues of course that a subjective intent is a constitutionally required element of any true threat. Perhaps unsurprisingly, given the Court's recent direction in its First Amendment jurisprudence, Counterman first relies on history and tradition arguing that a unifying principle of founding era jurisprudence is that speech crimes, whether we're talking about breach of the peace, criminal liable, or true threats, could not be punished absent criminal intent. Colorado counters that early threat statutes and prosecutions did not clearly identify a subjective intent to threaten as an essential element of the offense focusing instead on the plain meaning of the defendant's words. But even if the historical evidence is ambiguous, Counterman carries, Colorado has failed to carry its burden under Bruen of establishing a historical tradition of criminalizing negligent threats.
The parties also dispute whether current doctrine requires culpable mens rea for other categorical exceptions to the First Amendment. There was some debate for example about whether the fighting words exception requires intent to provoke a fight. I think the two most interesting issues in this part of the argument are the incitement and defamation exceptions. Most commentators agree that incitement does require a subjective intent to incite unlawful conduct, but Colorado argues that an analogy to incitement is improper because true threats cause harm by their mere utterance whereas incitement causes harm only if it persuades a third party to engage in unlawful conduct. Conversely, it's well established that merely negligent defamation of a private person at least is actionable under longstanding common law, but Counterman argues that the analogy to civil defamation is inapposite and that criminal defamation does require heightened mens rea for a conviction.
And of course criminal defamation prosecutions are relatively rare in this country today, but I should note that the ACLU currently has a petition before the Supreme Court arguing that criminal defamation prosecutions for speech criticizing public officials at least is categorically prohibited under the First Amendment. At bottom, I think the dispute in this case is really about who should bear the risk that a person's words will be misinterpreted as threatening when the person did not actually intend to utter a threat. This is a serious problem because there is a great deal of speech including political speech and particularly including online speech that could be either threatening or not depending on how you look at it.
On the one hand, Colorado is undoubtedly correct that objectively threatening speech causes serious harm regardless of the speaker's intent. On the other hand, Counterman is obviously right that an objective test no matter how sensitive it may be to context, criminalizes innocently intended speech and therefore risks killing core political speech lying at the heart of the First Amendment. This is a question that is not split along partisan lines. Chief Justice Roberts and Justice Sotomayor are two justices who seem very much inclined to adopt a robust First Amendment holding in this area. On the other hand, Justices Alito, Justice Thomas, and perhaps even Justice Kagan may be willing to accept a more flexible standard. So it will be interesting to see how the Court resolves this issue.
Anastasia P. Boden: Well, thanks for that, Brian. And I have to say I'm a recovering civil rights lawyer and I brought many a First Amendment case, but I was going to ask you a question about this argument that I found compelling in the government's brief that the speaker's motives do not minimize their dangerousness. And I was going to ask you the best response to that, but you preempted me, and you did that. So thanks for that.
Brian Hauss: My pleasure.
Anastasia P. Boden: Sharon, please tell us about Groff v. Dejoy.
Sharon Fast Gustafson: I'm always happy to be speaking with my friends at The Federalist Society, and I will tell you that I did file a brief along with Rachel Morrison who worked with me at the EUC. We filed a brief on behalf of the petitioner in this case. Groff v. Dejoy is going to be argued just this coming Tuesday at the Supreme Court and this case is fun and interesting to those of us in employment law. It has the potential to restore a correct fair reading of religious accommodations under Title VII of the Civil Rights Act of 1964.
Title VII requires an employer to reasonably accommodate the religious belief or practice of an employee absent undue hardship to the employer's conduct of his business. And this sounds like a robust protection for religious employees, but the case law has watered this down, and Gerald Groff is now coming to the Court asking the Court to clarify that the statute means what it says when it requires employers to accommodate religious beliefs and practices absent an undue hardship to the conduct of the employer's business.
Gerald Groff is a Christian who for religious reasons does not work on Sundays. Sunday is his Sabbath. He uses it only for worship and for rest. Mr. Groff joined the United States Postal Service -- the post office -- as a mail carrier in part because he knew that the post office didn't deliver mail on Sundays, and he thought this was the perfect job to have no conflict with his religious faith. And then Amazon came along, and the post office entered into a contract with Amazon that called for delivery of packages on Sundays.
So when Mr. Groff's office started delivering packages on Sunday, he looked for a place to transfer and he found one, a place that did not deliver packages on Sundays. And so that worked for a while until the new location started delivering packages on Sundays. And he tried there to work things out. He volunteered to work all the Saturdays, he volunteered to work all the holidays that didn't fall on Sundays. He was willing to swap with his coworkers when need be but that did not completely solve his problem.
So he explained to his employer that he couldn't work on Sundays without violating his religious faith and the post office accommodated Mr. Groff for some period of time by not putting him on the Sunday rotation and scheduling an available assistant delivery person in his place and there was no harm to the post office in doing this. In fact, a simultaneous email from a manager supervisor at the time confirmed that there was no harm or cost to the post office. But at some point, somebody decided that it wasn't fair to other employees to take Mr. Groff off of the Sunday rotation, and so they began scheduling him again and they began to penalize him when he didn't show up for work on Sundays. And he got away with this for some period of time because of the progressive discipline policy but in 2019 when the next disciplinary step was termination, Mr. Groff went ahead and quit his job and filed this lawsuit.
And the lower courts -- the district court -- the Third Circuit found for the post office based on Trans World Airlines v. Hardison, a 1977 Supreme Court case that I'll discuss in a moment. In this case there are two questions presented relating to Title VII's provision that employers will grant accommodations for religious belief and observance absent the employers showing of undue hardship to the conduct of the business. In Trans World Airlines v. Hardison the Supreme Court held that an employer need not violate a bonified seniority system in a collective bargaining agreement in order to accommodate a religious employee.
Section 703(h) of the statute of Title VII expressly provides this exception for seniority systems and in Hardison, the Supreme Court so held and then went on to say towards the very end of the opinion in the last couple of paragraphs, mostly in one sentence, that an employer suffers an undue hardship in accommodating an employee's religious belief or practice whenever doing so would require the employer to bare more than a de minimis cost. And that more than a de minimis cost standard is really what's at question here. It does not appear anywhere in Title VII, none of the parties argued for it in that case. Title VII requires the accommodation absent undue hardship to the employer, not just any hardship, but undue hardship. Some amount of hardship therefore is not undue.
To say that employers need not accommodate religious faith so long as they can show more than de minimis cost has to a large extent gutted religious protections for religious employees in the workplace. And in fact in that Hardison case, Justices Marshall and Brennan in their dissent said that this new standard made a mockery of protection from religious discrimination in Title VII. So the two questions presented are whether the Court should disapprove the more than de minimis cost test for refusing Title VII religious accommodations. And Mr. Groff argues that to show undue hardship, the employer must show significant difficulty or expense.
You may ask, where does the significant difficulty or expense standard come from? And the answer is that this is the standard used in other employment statutes for that same language of undue hardship. USERRA, that brings people in the military back to work, requires that military persons be accommodated absent a showing of undue hardship and expense. The Fair Labor Standards Act has a requirement that nursing mothers be accommodated absent undue hardship and now the Americans with Disabilities Act also has a requirement that disabled people be accommodated absent undue hardship. And all of these statutes define undue hardship as significant difficulty or expense. So the petitioner is arguing that that would be the proper standard to use in this case as well.
The second question presented in this case is whether an employer may demonstrate undue hardship on the conduct of his business under Title VII merely by showing that the requested accommodation burdens the employee's coworkers rather than the business itself. And the Third Circuit relied on that additional burden to coworkers in finding that there was an undue hardship. Mr. Groff contends that while burdens on coworkers may be a relevant factor for a court to consider when considering undue hardship, it standing alone -- a burden to a coworker alone -- does not constitute undue hardship. When the Supreme Court recently remanded the Kennedy v. Bremerton case to the Ninth Circuit, it noted that the parties did not ask the court to revisit TWA v. Hardison, and this caused some -- many in employment law -- to hope that the Court was interested in revisiting that case and restoring a proper understanding of the statute's religious accommodation requirement.
As to the first question presented, we expect that the primary argument will be -- from the respondent will be stare decisis, that the Court has already said what the standard is, and the Court should leave it alone. The petitioner will argue that is a dicta in the case and not a holding because at the time that the facts that gave rise to the Hardison case happened, Title VII had not yet been amended in a way that required accommodation of religious belief and so the Court was interpreting not the statute, but the EEOC guidelines which were later enacted into the statute. And because this was a minimally briefed issue, and the Court gave scant reasoning to it and because it has caused -- given rise to extreme circumstances and consequences for employees, stare decisis should not apply here. But we expect that to be the argument.
Another argument we expect as to that first question presented is that the violation of the terms of a collective bargaining agreement is per se an undue hardship for the employer. But here there is no seniority system like there was in the Hardison case. The Third Circuit did not rely on a seniority system in this case, so we think it's not relevant and we expect the petitioner to argue that. And as to the second question presented about whether or not some burden to coworkers is sufficient for a finding of undue hardship to the conduct of the employer's business, we expect the petitioner to note that the Third Circuit did not rely on that as well.
The Third Circuit did say -- excuse me -- that additional work for coworkers was sufficient and that it had a negative effect on employee morale, but this is not the test that the statute provides. And further, all accommodations for employees whether they are returning military persons, whether they are nursing mothers, whether they are disabled people, all accommodations to employees may give some additional burden to coworkers and yet that does not negate that part of the statute. And in this case, it should not as well. In the Abercrombie v. Fitch case, the Court made it very clear -- the Supreme Court made it very clear that the religious accommodation provision requires not just neutrality but a positive accommodation for religious employees. And so we expect those are the arguments that will be made. Happy to answer questions later.
Anastasia P. Boden: Thanks very much. Ilya, tell us about Tyler v. Hennepin.
Prof. Ilya Somin: Sure. So this case is about the practice of so-called home equity theft which is a situation when -- sorry. I've been recovering from a very spotty cold but it's still kind of annoying. Let's start over. This case is about the practice of home equity theft which occurs when there is a tax delinquency on a piece of property and the government forecloses on the property and then sells it to pay off the tax delinquency. In most states when the government does this, they only keep enough money from the sale to pay off the delinquent real estate taxes and associated fines and the like, but in the state of Minnesota and in 11 other states, they keep the entire value of the property that gets sold off. And the question is whether this is a taking under the takings clause of the Fifth Amendment and therefore requires just compensation for the property owner and also whether this is an excessive fine under the Eighth Amendment of the constitution as well. Both of those issues are going to be assessed by the Supreme Court in this particular case.
Before going further, I need to clarify and make a disclaimer that the plaintiffs in this case or the property owner is being represented by the Pacific Legal Foundation which is also my wife's employer though my wife is not herself part of the litigation team that's arguing this case. People familiar with my work will know that I've been involved in these sorts of issues since long before my wife started working at PLF in 2020 and that the views I hold on the case are outgrowths of that earlier work. However, I do want to mention this so that nobody will think that I'm trying to hide some sort of conflict of interest.
So this particular case arose in Hennepin County Minnesota where an elderly widow, Geraldine Tyler, who is now 94 years old -- she had for years lived in a condo but for various reasons she was forced to move out. And when she moved out and started renting an apartment elsewhere, she started having difficulty making her real estate tax payments on the condo. Eventually a total about $15,000 in delinquent taxes and fines and the like had accumulated and the county foreclosed on the property and sold it. And then they kept all the money, not just the $15,000 that they were owed but an additional $25,000 as well, which is a good deal of money particularly for an elderly widow with relatively few sources of income.
And PLF represented Mrs. Tyler in this case, and they filed but the Eighth Circuit ruled that there was no taking here nor was there a violation of the excessive fines clause. They essentially reasoned that there is no taking because property is defined by state law and the state of Minnesota had passed a statute in 1935 and later amended which said that in these kind of cases if there is a tax foreclosure or tax forfeiture then the entire value of the property belongs to the state and not just however much is necessary to actually pay off the delinquent taxes and fines.
This created a circuit split with the Sixth Circuit which went the other way on this issue just last year. There are a number of state Supreme Courts that have also gone the other way as well though there are some state Supreme Courts which have upheld this sort of practice. And I should note there are numerous cases like this in other states. There's a total of 12 states which allow home equity theft and also the District of Columbia as well. These sorts of problems are particularly common with elderly homeowners like the property owner in this case because they're particularly likely to either accidentally fail to pay their real estate taxes, to have health problems which prevent them from doing so and so forth but they're also obviously common with lower income or lower middle-class homeowners of other types as well.
So the first big issue in this case is whether this kind of thing is a taking and I think the answer has to be pretty obviously yes. Ownership of land surely is the kind of property that is protected by the takings clause of the Fifth Amendment and in this case, the government is completely seizing the entire property. They're permanently occupying it and selling it and keeping the money. So it easily meets standard requirements for what counts as a taking. Generally speaking a permanent seizure of property or a permanent physical occupation of property is automatically what lawyers call a per se taking. That is it isn't subject to any kind of balancing test. It's just automatically considered a taking requiring just compensation.
It is true that in this case, the government has a claim on the property based on the tax delinquency but that doesn't mean they have a right to all the value of the property. It just means they have a right to enough to pay off the taxes. So in all of these respects, this should've been an easy case but for the argument that the Eighth Circuit endorsed and some state courts have endorsed as well that the state could effectively define away the property rights here because they passed a statute saying that in this kind of situation the government gets to take all of the land or all of the value of the land and not just that part which is necessary to pay off the tax delinquency.
I think it is true that there are various Supreme Court precedents which say that property rights are defined by state law or by other legal sources. However, if you take this to the extent of saying well, if it's defined by state law then the state can just redefine it however it wants then essentially the state can pretty much always avoid takings liability simply by passing a law saying something like, if we want Somin's house, we can just define Somin's house as no longer his property and therefore we're just going to take it and because we passed a statute saying that it's all right, or we can say all farm land now belongs to the state or all commercial real estate or you get the idea. I can go on with hypotheticals like this.
So at the very least, the Sixth Circuit which reached the opposite decision last year is surely right when it said that the state cannot simply override long established property rights by saying that they no longer exist and the right to keep the residual value of your home after a foreclosure for taxes that was actually a pretty long established property right going all the way back to English common law. But I would go further and suggest that at least if you want to look at the original meaning of this, if you look at what the founding generation believed about this when the takings clause was first enacted in 1791 or when it became applicable to state governments in 1868 as a result of the Fourteenth Amendment, there was a belief in the legal community, I think arguably also in the general public, that property rights are not simply the product of state law. They are also natural rights as well. They have a basis in natural law and general moral principles.
And while there are certainly some aspects of property rights which may be defined purely by positive law, there is a core aspect including the ownership of land which has its origins in natural property rights and therefore while the state may protect it, while the state may define some of the outer boundaries of it both literally and figuratively -- literally in the sense of actually drawing the boundaries of particular lots -- what it cannot simply do is infinitely alter the property rights or destroy them as it sees fit, and I think it would be good if the courts were to actually recognize this natural law basis of property rights.
I would add that on this issue, if you take the view that because a state has a role in defining rights that therefore it can abrogate them whenever it wants, this logic would apply not just to property rights but to a lot of other constitutional rights as well. Rights of bodily autonomy and integrity are heavily defined by state law in various ways by state tort law for instance -- but that doesn't mean the government can say, well we can decide what we want to do with your body simply by redefining the scope of your autonomy. Perhaps an even better example is marriage rights.
Marriage is a legal status which is actually much more clearly created by state law than even property is but nonetheless, there are constitutional rights to marriage -- the Supreme Court has said so. They've also said certain kinds of discrimination with respect to those rights is forbidden like discrimination against same sex couples, discrimination against interracial marriages or interfaith marriages and so forth and the state surely cannot say, well marriage is just a status that we define. We don't even have to have a marriage law if we don't want to. Therefore we can say same sex couples can't be married in our state or interracial couples or some other sort of couple that we the state do not approve of and if that applies to marriage, surely it applies to property as well.
So I'm not sure how far the Court is likely to go on this issue. They probably won't go all the way to addressing the issue of natural rights, but I think it is very likely that a majority of justices perhaps even across ideological majority will say that there are limits to the state's ability to simply redefine property rights however it sees fit and thereby avoid takings liability. They may well adopt a logic similar to what the Sixth Circuit did where if it's a long-established property right, if they want to get rid of it, they have to pay takings compensation.
The other issue in this case is whether this is an excessive fine under the excessive fines clause of the Eighth Amendment and the question here really is whether this is a fine at all. The state argues it's not a fine, it's just a forfeiture and it's a transfer of a property right and I think there is some complex issues here. On balance, I think probably this should qualify as a fine because it does have a kind of punitive function in addition to everything else. However, this issue is tougher than the takings issue. I think there's a good chance the Supreme Court will simply not reach this issue because they can decide this case in favor of the property owner based on takings alone. I think also most experts, myself included, expect that the property owner will prevail here based on the takings theory and the divergence between experts on this is between those who hope for a relatively broad decision as I do and those who hope for a relatively narrow one which will still give a state a somewhat freer hand to redefine property rights in less extreme sorts of circumstances. So we'll have to see how that turns out. And on that, I conclude, but I very much look forward to the discussion and questions. Thank you.
Anastasia P. Boden: Well, thanks for that, and before we open it up to the panelists to comment on any of these cases and open it up to your questions, I just wanted to briefly mention two other cases on the calendar that have garnered less attention but I want to make that they get their due so I will keep it brief. First, Slack v. Pirani involves whether the Securities Act of 1933 requires plaintiffs to both plead and prove that they bought shares under the registration statement that they contend was misleading.
So to start with some background for those of us who forgot what we learned in securities law, the Securities Act of 1933 requires companies to make a one-time disclosure in the form of a registration statement and along with an accompanying prospectus when it offers certain shares to the public, but some shares are exempt from this registration requirement. A purchaser can then sue under the act if that purchaser believes that a statement in the prospectus makes a material misstatement.
So in 2019, Slack went through -- it went public through what's called a direct offering. This is a little bit different from a traditional IPO. Under a direct offering, the company doesn't issue any new shares. Instead it enables all the existing shares to be traded to the public whether those shares are exempt from the registration statement or not. Pirani, the plaintiff in this case, bought 30,000 Slack shares at $38.50 and later he bought another 220,000 shares. After the share price fell below $25, Pirani sued, arguing that there was a material misstatement in the registration statement. However, Pirani has no idea whether the particular shares that he bought were required to be registered or not and in fact there's probably no way for Pirani to figure that out.
Nevertheless, the Ninth Circuit was the first court in 50 years to rule that a plaintiff need not show that he or she purchased registered shares to sue for an alleged misrepresentation in the registration statement. And if you take Slack at its word, this was based on an apparent concern from the Ninth Circuit that it would otherwise create a huge loophole in the statute for direct offerings where purchasers often can't tell whether their shares are registered or not. According to Slack, this was an error. The operative language in the securities statute refers to a purchaser of "such security" and Slack argues that "such security" means a security that was registered. Slack points out that although this would preclude liability where the purchaser can't prove whether his share was registered or not, there are plenty of other causes of action in the Securities Act and in the Securities Act of 1934.
Those causes of action have more stringent requirements for plaintiffs and perhaps that's exactly why the plaintiff preferred to sue under the provision he did. But, says Slack, this was all part of the careful balance that Congress struck, and the Court should not alter it by making it easier to sue under this particular provision. Pirani, for his part, notes that Slack's interpretation would create a huge loophole because it will often be impossible to tell whether your shares were registered in a direct offering or even down the line after an IPO and Congress could not have intended such a loophole. Moreover, private New York Stock Exchange rules require a registration statement for direct offerings. Again, this isn't required by the securities statute or anything, it's just a private rule. However, Pirani believes that this private rule means that all shares are sold pursuant to that registration statement regardless of whether they are actually required by a statute to be registered or not and thus, all shares fall within the Securities Act when the New York Stock Exchange rules apply in that way.
Now I always enjoy a good lawyering. I'm sure you all do too. And I'll note it's interesting when you read the briefs, Pirani makes it sound like Slack and other companies who are going through these direct offerings rather than an IPO are just trying to avoid liability for material misstatements. They do a very good job of sort of casting aspersions on this process but then when you turn to Slack's brief, it emphasizes the benefits to smaller businesses of not having to go through a traditional IPO and in fact the benefits to shareholders because this allows preexisting shareholders to more easily transfer their shares without forcing a traditional IPO. Regardless of who the bad guy is, this is a straightforward matter of statutory interpretation, and we will see how the Court decides.
Last but not least is Schutte v. SuperValu or I've been advised, I think, in German it's Schutte. But this concerns several grocery chain's prescription drug programs and the government's allegation that these chains overcharged for prescription drugs under Medicare and Medicaid in violation of the False Claims Act. So the question in this case is whether and when a defendant's subjective belief about whether its conduct was lawful is relevant to whether it knowingly violated the False Claims Act.
This all starts with Walmart. Walmart has for many years offered very low prices for prescription drugs. I think they have something like a $4 special which forced SuperValu and other chains to compete with them. The problem is these chains didn't want to give up the very high prices that they were charging to the government under Medicare and Medicaid. Under Medicare and Medicaid, you can only charge the government your usual and customary pricing. So if the chains lowered their price for everyone, they'd have to lower the price for the government. So they devised a work around naturally. Where there's a will, there's a way.
First, they offered price matching. So their general price to the public stayed the same. It stayed quite high. But if a customer came in and pointed to Walmart or what have you, the chain would come down and price match. Some of the other chains engaged in special clubs that would get you special prices but as the government noted, there were essentially no barriers to entering this club. It was all just a fig leaf to avoid lowering the generally offered price.
Apparently, there was some concern at SuperValu and the other chains as to whether this practice was actually legal and whether it changed what their usual and customary pricing was. And if you buy the government's story, these chains straight knew it wasn't legal. They had been warned by several benefit managers, they expressed their concerns in internal emails. And so the government contends that these chains knowingly violated the False Claims Act by submitting reimbursement requests above their actual usual and customary pricing. The district court and the Seventh Circuit ruled that these chain's subjective understanding was irrelevant so long as they were following a reasonable interpretation of the law.
So the theory there is that a person cannot have knowingly acted in a wrongful way if the statute is ambiguous, and they were just following an objectively reasonable interpretation. So the upshot is even if these chains thought they were violating the law, if there is an objectively reasonable interpretation that justifies their behavior, they did not knowingly violate the statute. Essentially, there's a difference between intentionally or knowingly defrauding the government and taking advantage of an ambiguous statute.
Again, I thought these briefs were really nice. The government presents some compelling evidence that the chains were deliberately trying to keep prices high in a way that was at the very least legally questionable. But then you read SuperValu's brief which was also very good, and it makes some great points. First of all, they say they were just trying to help uninsured people get access to reasonable prices and so that's where their motivation comes from. It's not from trying to defraud the government. But also, they say the entire statutory scheme is quite confusing. Many states have different rules for what constitutes usual and customary pricing, their contracts with benefit managers were all different, each benefit manager had a different rule.
The government knew of these practices of price matching or creating these clubs for special pricing, and it never once offered any guidance. It never issued any rules, it never informed these chains that they were wrong and in fact, these chains had been audited multiple times with no sign that what they were doing was changing their usual and customary price. And finally courts have even disagreed about the legality of all this and what creates usual and customary price. So SuperValu says it really didn't know whether its behavior was lawful. It had suspicions but ultimately, the conduct was objectively reasonable.
Now the government doesn't like all this, right? Because it takes people off the hook even if they believe they were doing something wrong so long as they can justify it post hoc. The government may not like it, but I think the argument on the other side is just be clearer in your statutes. If you have a clear statute, you give people more warning, more due process, less wiggle room and we wouldn't have this problem. I also don't have much sympathy for the government given things like qualified immunity where the government itself often wants to take its own actors off the hook if they have different ideas about whether their conduct was legal or not or they even say that the government official's subjective understanding about whether their conduct was legal is irrelevant to whether they should be liable. So I think what's good for the goose is good for the gander here, and it's a little hypocritical to argue differently under the auspices of the False Claims Act.
So those are the two last cases and before we turn it over to the audience for questions, I wanted to offer time for the panelists here to remark on any of the cases mentioned by the other panelists. So do we have any panelists who wish to comment? All right. Hearing nothing, I'm going to turn to the question-and-answer function here on Zoom. And I see we have a question from Professor Ilan Wurman, "Is there any way to find that there was still a taking," I take it this was submitted, sorry, during the Tyler v. Hennepin conversation so Ilya this is directed to you. "Is there any way to find that there was still a taking without relying on substantive due process type cases like Arnett v. Kennedy? Substance and procedure are distinct, and you can't define the right in a way that effectively allows them to take away that property without due process.")
Prof. Ilya Somin: So I don't think substantive due process arguments are necessary in this case in any way whatsoever except one that I'll get to in just a moment because the case is litigated directly under the takings clause. If you're saying this violates the takings clause if you seize not just the amount of property needed to pay off the delinquent taxes and fees but also the entire value of the property and no substantive due process reasoning is necessary to reach that conclusion except insofar as the Supreme Court has ruled that all of those parts of the bill of rights that are incorporated against state governments that they are incorporated because of the due process clause of the Fourteenth Amendment.
Some legal scholars and judges, including I think Ilan, who asked this question, believe this would be better done under the privileges or immunities clause. I doubt the Supreme Court is going to change this jurisprudence on that in this case though I have some sympathy with that kind of argument myself. But with that caveat, there's no need for any substantive due process reasoning. I'm also somewhat skeptical that the case can be resolved based on procedural due process reasoning either. I think it's just much more straight forward to resolve it directly under the takings clause that this is a taking of private property and the government cannot do that without paying just compensation. And that is what the Sixth Circuit ruled in a similar case last year and what some state Supreme Courts have ruled as well.
Anastasia P. Boden: I see another question here related to Tyler v. Hennepin which is not surprising to me because I think that case truly does shock the conscience and is really surprising to people when they find out that this can happen. The question is, "This is just hypothetical to make sure I understand the real property rights in question in the Minnesota case. Could the state under its argument seize and sell a 1,000-acre farm for being delinquent in $15,000 worth of taxes and then keep the entire amount? The size of the property is different than that in the actual case, but the principle is the same, and I was curious how far the state is willing to defend its position?"
Prof. Ilya Somin: So the answer to that question is yes. If you buy the state's position and you buy the reasoning of the Eighth Circuit in the lower court decision, then it doesn't matter how big the disproportion between the value of the land and the tax delinquency is. All that matters is that there's some tax delinquency no matter how small. And indeed some cases of this type have featured even much larger disproportions than the present case. In the San Rafael case also litigated by PLF decided by the Michigan Supreme Court in 2020, there the county government had essentially tried to keep the entire value of a $25,000 property in a situation where it was a tax delinquency of $8.41 plus a few accumulated interests and fines, but still the disproportion was even more ridiculously large than it is in this case.
By the logic of the argument made by various state and local governments in these sorts of cases they can't avoid that conclusion because their argument is that they're able to extinguish the property rights here by enacting legislation to that effect and on that logic, there's not a difference between a relatively modest amount of money lost as a result versus a much larger amount though I would note in practice the greater the overall value of the property, the more likely it is that the owner is wealthy enough that they probably wouldn't have a tax delinquency in the first place. But many of these cases do feature very large disproportions between the size of the tax delinquency on the one hand and the value of the property on the other.
And this does indeed shock the conscience, as Anastasia said, of people on all sides of the political spectrum. If you look at the amicus briefs in this case, there are amicus briefs supporting Tyler both from right- and left-wing organizations and other kinds of organizations as well. This is a rare case where I find myself on the same side as the AARP because the AARP, they are concerned about the fact that elderly homeowners are particularly likely to suffer from this sort of situation.
Anastasia P. Boden: Yeah. As you say in that one case, the person was behind on taxes by $8. $8 and they seized the person's entire home. I think PLF was emphasizing at that time that was the price of a Chipotle burrito. They were behind for the price of a Chipotle burrito although since then I think inflation has made burritos cost go up.
Prof. Ilya Somin: Yeah. In fairness it was $8.41 and later some fines accumulated but nonetheless the disproportion was ridiculously large or even more ridiculously large than in this current case that's before the Supreme Court.
Anastasia P. Boden: Yes. And also as you said these people are not exactly scofflaws. They're often people who by mistake didn't receive the notice or it was --
Prof. Ilya Somin: Yeah. In the case of the $8, it was a mistake. In the present case -- you can correct me if I'm wrong, Anastasia -- but in the present case, Mrs. Tyler suffered financial hardship which prevented her from paying the taxes, but it very often is not simply a case that the person is deliberately trying to be delinquent. It is a case of that they got caught up in difficult circumstances or make a calculation error or the like and obviously people who are lower income or elderly suffering various health problems and the like, they're more likely to get into this situation than others.
Anastasia P. Boden: We have a few more questions on this case related to Tyler. Does Ilya know anything of the origins of these types of equity theft laws? How long have they been around and what motivated them?
Prof. Ilya Somin: So I think they became more common in the early 20th century, and I think the motive is simply to get more money for the local governments particularly during eras like in the great depression when this Minnesota law was passed when obviously local government finances were suffering as a lot of private finances obviously were suffering as well. And I do think there also is an origin in the idea that was prevalent during the progressive era among legal theorists but that exists even today to some extent, though it's a bit less popular, that property rights are indeed ultimately just a product of definition by governments and therefore it follows that governments should be able to redefine them as it sees fit. So that idea was at its ideological height in the early to mid-20th century including at the time that this law was enacted in Minnesota in 1935.
Anastasia P. Boden: Yeah. I'll note what's interesting is that may have sort of morphed into cronyism because now what we see in some states is that the state will then turn over the property to some private company at minimal costs and then the private company will then sell the company and keep all of the proceeds. So it's interesting how over time that's morphed --
Prof. Ilya Somin: So sometimes the local government can keep the money. Other times it can reward favored interest groups and the like and from their standpoint, it's a win-win especially since most of the people who get victimized by this situation, despite the hypothetical named earlier, they're not large wealthy landowners with 1,000-acre farms or whatever. It's usually relatively lower middle class or lower income people or as in this case, elderly people suffering from health problems and the like and therefore in most cases if they're not fortunate enough to have pro bono legal representation from PLF then they're not in a good position to resist.
Anastasia P. Boden: We have a question about the Lac du Flambeau case. "Have other tribes filed briefs in the case or made public statements regarding their stance on the issue?"
Thomas F. Gede: I believe so, and I apologize. I don't have the amicus brief list in front of me, but I do believe that there was a tribal brief in this case again asserting that Indian tribes should be separately listed alongside domestic and foreign governments in the catchall phrase in the bankruptcy code. I can't tell you who the amici were. I mean, I can look it up, but I didn't have it in front of me.
Anastasia P. Boden: Thank you. Do we have any other questions or comments from our panelists? Oh, here's one. "Was Coughlin residing on tribal land?"
Thomas F. Gede: I don't know the answer to that right off hand. I can't tell you. I don't have the facts of that.
Anastasia P. Boden: I read the briefs just yesterday and I will say there was no mention of that if that's the case.
Thomas F. Gede: No.
Anastasia P. Boden: It certainly was not part of the statement of the facts in the briefs.
Thomas F. Gede: Correct. And typically -- well, I say typically. I can't say that it's universal. The consumer lending entities that are owned by -- or subsidiaries or in some cases are not an arm of the tribe are seeking consumers outside the realm of the Indian reservation. They're just looking for potential consumers who want to get a loan. And so my guess is that he did not reside on Indian land.
Anastasia P. Boden: Brian, I myself had a question about Counterman, which has to do with it's -- it's essentially a follow up to as you said the Elonis case a few terms back having to do with the aspiring rapper who was emulating Eminem when he rapped about certain violent things he wanted to do to his ex-wife. And I wonder if we can glean anything from the opinions in the oral argument in that case about how this case might turn out.
Brian Hauss: I think the really interesting thing about Elonis is the narrowness of the decision and that to me suggests that a broader ruling on the First Amendment question would've been messy. It might not have commanded a majority of the Court. So I think part of the reason perhaps that the Court went with the narrow decision is that it could have a clean five vote majority that everyone would understand was a controlling decision and that the Court might've splintered into a variety of different opinions if the Court had gone any broader than that.
Obviously, this is a new court since Elonis was decided. And so the changes in personnel might affect how the Court is going to rule on these issues, and I'm sure -- I would suspect that the Court did not take this up unless it thought that it could finally come out with some sort of clear rule one way or the other. So as I mentioned previously, Elonis was this question about how do you interpret the federal threat statute, and essentially Chief Justice Roberts held that we have a presumption in federal criminal law that there is some degree of culpable mens rea. And so because this law is nonspecific and defining mens rea differently, we're going to assume that at least there must be a recklessness standard.
Here we have a situation where the Colorado Supreme Court has decisively interpreted Colorado law and says we don't think a subjective element is necessary. So the statutory interpretation ground that the court relied on in Elonis is now off the table, and so I think we're going to see this much broader question. To me I think the really interesting bone of debate is going to be over not whether there is some degree of culpable mens rea -- I strongly suspect that there are five votes that say that there is some degree of culpable mens rea required. Even Justice Alito in his opinion in Elonis suggested that recklessness may be necessary. I think the question that's going to divide a lot of the justices here is, is it recklessness, is it knowledge, or is it specific intent to threaten?
I think there is at least one good argument for a more robust standard whether it's knowledge or specific intent to threaten. And that's if you have a speaker who's broadcasting to a large audience as you inevitably do when someone is talking on social media -- if you're talking on Twitter for example. Your speech is effectively being broadcast to the whole world whether you intend that or not. In those contexts, a speaker might know to a statistical certainty if their speech has violent overtones that some people could reasonably interpret that as threatening without the appropriate context.
I mean, if you look at the statement in Watts v. United States that's a case where a Vietnam War protestor said if they put a rifle in my hand, the first person I'm going to get in my sights is LBJ. The Court said in that case, well, objectively, he's at an anti-war rally. Everybody understands he's speaking figuratively. Objectively that wasn't threatening in context. But now imagine he says that on Twitter. You don't have any of the surrounding context. Some people might see that as threatening. Some people might see that as nonthreatening. Now under a subjective standard, he could come in and say given the people I was speaking to, I did not intend to threaten anybody. I was aware that my speech might travel outside the bounds of the audience that I was directing it at but that's just a risk you take when you're speaking on the internet. Under an objective standard, I think he's convicted. Under a subjective standard, he very well might not be. So I think how the Court addresses whether it's recklessness or specific intent is going to have really meaningful differences for how comfortable people are speaking in this way online where context is not going to do a lot of the work in deciding whether the speech is protected under the First Amendment.
Anastasia P. Boden: Thanks. We have a question here in the chat for Sharon. "Assuming the Court overturns the existing precedent on the meaning of undue hardship, do you have thoughts on how the specific justices might want to replace that or what they might want to replace that with? Will most or all of the justices joining that majority opinion just want to go with the interpretation of undue hardship under the ADA?"
Sharon Fast Gustafson: The ADA was passed later in 1990. It was after the Hardison case. It was after the amendments to Title VII. So the Court may say we don't have any reason to need to use that. But in terms of it just being common sense, common use language, a significant difficulty or expense makes a lot of sense. It seems that that's what undue hardship would mean. So I think it's very likely that they would go with that test in part because of the common meaning of the terms and in part because of the fact that all these other employment law statutes use that same test.
Anastasia P. Boden: Thank you. And I think that also answers our question in the chat which was related to what is undue hardship?
Thomas F. Gede: Anastasia?
Anastasia P. Boden: Yes, Tom?
Thomas F. Gede: I have an answer to an earlier question, and I apologize because I didn't know that there were amicus briefs in the case involving the bankruptcy law and there were seven tribes led by the Navajo nation in an amicus brief supporting the Lac du Flambeau Band of Lake Superior Chippewa Indians. And also with those seven was the NCIA, the National Congress of American Indians. There was also a second amicus brief supporting the tribal position from Indian law professors that included Matthew Fletcher, a leading Indian law professor at University of Michigan, and some other law professors. So there were those two amicus briefs.
Anastasia P. Boden: Thanks, Tom. Another question about Counterman here. Do you think that if the victim was a more well-known public figure, say a national elected official, that that would in any way change the analysis?
Brian Hauss: So doctrinally it shouldn't necessarily affect the analysis at all. I suppose the one way in which it might is that a well-known public figure has a much broader audience by nature and therefore should expect, if you're using a recklessness standard or something lower a negligence standard, a lot more people are going to view their speech and the risk that someone is going to reasonably interpret it as threatening is much higher. Conversely, I guess you could say that if you have a well-known public official perhaps engaged in a reelection contest and says something like, if my opponent wins, we might have to resort to Second Amendment remedies. Some people could interpret that as threatening political violence. Some people could interpret that as essentially a plea for votes.
A court might say in context we understand this person is speaking in the context of an election and so we defer to the public official on those things. On the other hand, a court might say that the danger that a public official is essentially asking their followers to engage in violent conduct increases the risk that the speech will be perceived as threatening. At bottom I think that this is why subjective intent standard is necessary because in order to protect speech at the heart of the political process, speech by public officials for example in a reelection contest, the easiest way I think for a court to determine cleanly what speech should be prohibited and what speech shouldn’t be is to ask, what was the person trying to do? What was the message that they were trying to communicate? If they were trying to communicate a threatening message, then that's criminally culpable. If they were trying to do something else, perhaps there's civil liability at the back of that, perhaps there are other responses the government can make, but criminal punishment for that kind of speech risks too much distortion of the political process.
Anastasia P. Boden: Now, I'm sorry to let you go on, Brian, but I will note here that it seems the question was directed to what would happen if the victim was a public figure not the speaker.
Brian Hauss: Right. Well, I think it's no accident that perhaps the vast majority of threats cases that come up through the courts involve threats to the president. There is of course a specific statute prohibiting threats against the president. And part of the justification for that statute is the secret service has to investigate every single threat against the president. But courts like the Ninth Circuit for example have developed the subjective intent standard partly because they recognize the need for people to engage strong really speech or criticism of the president without risking criminal liability.
People talking about the need for the president to be brought to justice whether that's President Obama or President Trump if you look closely at that you could perhaps see a threat there. And I think certainly the government is very vigorous in prosecuting and statement that could be perceived as threatening to the president and there are a lot of cases where the government has tried to do that. And I think Watts v. United States is a classic example of that. That was a case about LBJ, and the reason Watts was prosecuted was because his speech was concerning the president even though it was classed as political speech. And so I think that when you're talking about speech that's critical of public figures the risk that that will be prosecuted as threatening is higher. That's a good reason why subjective intent standard is important in this area.
Anastasia P. Boden: Thanks. Well, I'll give it another minute to see if any other questions percolate through, but I thank the audience for their many questions. And seeing nothing, I'll turn it over to Nate. Thanks so much again to The Federalist Society and to Nate and for this terrific event.
Nate Kaczmarek: Well, thank you all very much. I wanted to say to Anastasia, I was so excited about your new arrival that I think I failed to congratulate you on your new title at CATO. I mentioned you're at CATO, but she's the new director of the Robert A. Levy Center for Constitutional Studies. So congrats to you, Anastasia, on that. And I think we've had an excellent discussion today. We want to thank our expert panel for this insightful preview and all the great questions from our audience. We certainly hope to have each of our panelists with us again soon. One quick final announcement before we go.
On Tuesday, April 25th, the practice groups will be hosting our 11th annual Executive Branch Review Conference at the Mayflower Hotel here in D.C. This year's theme is transparency, accountability, and the administrative state. It will feature a full day of excellent panel discussions and we are also pleased to announce that former Vice President Mike Pence will be joining us for our keynote address on that day. The vice president will also be staying for a book signing and cocktail reception to close out the day. For more information about that conference and to register, please visit FedSoc.org/ebr. Regarding today's program, we welcome audience feedback by email at email@example.com. Have a great day. We are adjourned.