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  • LII Collection: US Supreme Court decisions
    LII Collection of Historic Decisions The LII Collection of Historic Decisions of the US Supreme Court is available on the Net It currently consists of over 600 of the Court s most important decisions from the founding of the court to the present We provide a variety of finding aids with this collection including lists of cases by opinion author party name and topic Source information There are three strata of decisions Decisions prior to May of 1990 are licensed under arrangements with USSC and with LEXIS NEXIS Decisions from May 1990 to January of 1997 were released by the Court under the aegis of Project Hermes archived in WordPerfect format at Case Western University and then converted by us to HTML in January of 1997 There are some gaps in the CWRU archive which we have attempted to fill Decisions from January 1997 onward were received by the LII via direct HERMES transmission and converted on the spot Those interested in verifying accuracy may be interested in our work with digital signatures as a means of confirming the accuracy of these texts Direct pinpoint linking to particular decisions If there is not yet a US Reports cite The URLs which point to particular decisions are derived from the docket number assigned by the Court and further elaborated into a somewhat arcane system which names syllabi opinions concurrences and dissents separately If the opinion is new enough that it lacks a cite to the US Reports you ll need to discover the URL by other means the easiest is probably just to look at one of our finding aids for recent decisions it can take up to eighteen months for a US Reports cite to be assigned If you have a cite to the US Reports We provide a choice of viewing engine which returns Supreme Court cases from a variety of Internet sources given a US Reports cite To use it to get pointers to various versions of Michigan v Long 463 U S 1032 you d say A HREF http www law cornell edu supct cgi get us cite 463 1032 Michigan v Long A Note that the URL is just the root http www law cornell edu supct cgi get us cite followed by the volume and page numbers separated by a plus sign eg 463 1032 This syntax will work with any decision which has a US Reports cite the list of locations having the decision will vary depending on its age Searching Location of search form Historic decisions http www law cornell edu supct search index html scope onlyhistoric query Decisions since 1990 http www law cornell edu supct search index html scope onlyrecent query Fields or metadata you can search In both collections you can search by opinion author and party name The historic collection currently supports topical searches directly you can accomplish the same thing in the current collection by searching on relevant terms in the syllabi only See the section on captive

    Original URL path: http://www.law.cornell.edu/supct/supremes.htm (2012-11-09)
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  • Search the Opinions of the US Supreme Court
    subscribe liibulletin previews Search the opinions of the US Supreme Court Search for All decisions Only decisions since 1991 Only summaries of decisions Only historic decisions use and or not and is default acts as wildcard phrases in double quotes Find lawyers in the LII Lawyer Directory Supreme Court Toolbox Become an LII sponsor Stay Involved LII Announce Blog LII Supreme Court Bulletin Make a donation Contribute content Become a

    Original URL path: http://www.law.cornell.edu/supct/search/ (2012-11-09)
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  • Subscribe to the LII Supreme Court Bulletin | LII / Legal Information Institute
    Subscribe to the LII Bulletin First Name Last Name Email Address Enter the letters shown above Supreme Court Toolbox Search LII Donations cover only 20 of our costs Law about Articles from Wex CAN SPAM Act of 2003 Core Requirements Investor Protection Guide Internet Fraud Inbox Project Sponsors The U S Legal Context Privacy Commercial Solicitation and Commercial Speech Finding and Citing the Unimportant Decisions of the U S Courts

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  • LEFEMINE v. WIDEMAN | Supreme Court | LII / Legal Information Institute
    Mike Frederick responded that the police had not previously violated Lefemine s rights and warned that should we observe any protester or demonstrator committing the same act we will again conduct ourselves in exactly the same manner order the person s to stop or face criminal sanctions Ibid Out of fear of those sanctions the group chose not to protest in the county for the next two years See ibid On October 31 2008 Lefemine filed a complaint under 42 U S C 1983 against several Greenwood County police officers alleging violations of his First Amendment rights Lefemine sought nominal damages a declaratory judgment a permanent injunction and attorney s fees See 732 F Supp 2d at 620 Ruling on the parties dueling motions for summary judgment the District Court determined that the defendants had infringed Lefemine s rights See id at 620 625 The court therefore permanently enjoined the defendants from engaging in content based restrictions on Lefemine s display of graphic signs under similar circumstances Id at 627 The court however refused Lefemine s request for nominal damages finding that the defendants were entitled to qualified immunity because the illegality of their conduct was not clearly established at the time See ibid The court as well denied Lefemine s request for attorney s fees under 1988 stating that u nder the totality of the facts in this case the award of attorney s fees is not warranted Ibid The Fourth Circuit affirmed the denial of attorney s fees on the ground that the District Court s judgment did not make Lefemine a prevailing party under 1988 672 F 3d 292 302 303 2012 1 The court reasoned that the relief awarded did not alte r the relative positions of the parties The injunction prohibited only unlawful but not legitimate conduct by the defendant s and merely ordered d efendants to comply with the law and safeguard Lefemine s constitutional rights in the future No other damages were awarded Ibid Lefemine sought a writ of certiorari to review the Fourth Circuit s determination that he was not a prevailing party under 1988 The Civil Rights Attorney s Fees Awards Act of 1976 90 Stat 2641 42 U S C 1988 allows the prevailing party in certain civil rights actions including suits brought under 1983 to recover a reasonable attorney s fee A plaintiff prevails we have held when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant s behavior in a way that directly benefits the plaintiff Farrar v Hobby 506 U S 103 112 1992 And we have repeatedly held that an injunction or declaratory judgment like a damages award will usually satisfy that test See e g Rhodes v Stewart 488 U S 1 4 1988 per curiam Under these established standards Lefemine was a prevailing party Lefemine desired to conduct demonstrations in Greenwood County with signs that the defendant police officers had told him he

    Original URL path: http://www.law.cornell.edu/supremecourt/text/12-168 (2012-11-09)
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  • TENNANT v. JEFFERSON COUNTY COMMISSION | Supreme Court | LII / Legal Information Institute
    legislature S B 1008 however has a population variance of 0 79 the second highest variance of the plans the legislature considered That is the population difference between the largest and smallest districts in S B 1008 equals 0 79 of the population of the average district The Jefferson County Commission and two of its county commissioners sued to enjoin the State from implementing S B 1008 At trial the State conceded that it could have adopted a plan with lower population variations The State argued however that legitimate state policies justified the slightly higher variances in S B 1008 citing this Court s statement from Karcher that a ny number of consistently applied legislative policies might justify some variance including for instance making districts com pact respecting municipal boundaries preserving the cores of prior districts and avoiding contests between incumbent Representatives 462 U S at 740 The State noted Karcher s approving reference to a District Court opinion upholding a previous West Virginia redistricting plan with a population variance of 0 78 virtually identical to the variance in S B 1008 See id at 740 741 citing West Virginia Civil Liberties Union v Rockefeller 336 F Supp 395 SD W Va 1972 The District Court nonetheless granted the injunction holding that the State s asserted objectives did not justify the population variance With respect to the objective of not splitting counties the District Court acknowledged that West Virginia had never in its history divided a county between two or more congressional districts The court speculated however that the practice of other States dividing counties between districts may portend the eventual deletion of respecting such boundaries as a potentially legitimate justification for population variances App to Juris Statement 15 n 6 The court also faulted the West Virginia Legislature for failing to create a contemporaneous record sufficient to show that S B 1008 s entire 4 871 person variance or even a discrete numerically precise portion thereof was attributable to the State s interest in respecting county boundaries and noted that several other plans under consideration also did not split counties Id at 15 16 The court further questioned the State s assertion that S B 1008 best preserved the core of existing districts Preserving the core of a district the court reasoned involved respecting the s ocial cultural racial ethnic and economic interests common to the population of the area id at 17 quoting Graham v Thornburgh 207 F Supp 2d 1280 1286 Kan 2002 not a dogged insistence that change be minimized for the benefit of the delicate citi zenry App to Juris Statement 20 The District Court concluded that although acclimating to a new congressional district and Congressperson may give rise to a modicum of anxiety and inconvenience avoiding constituent discomfort at the margins is not among those policies recognized in Karcher as capable of legitimizing a variance Ibid With respect to preventing contests between incumbents the District Court again faulted the legislature for failing to build

    Original URL path: http://www.law.cornell.edu/supremecourt/text/11-1184 (2012-11-09)
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  • UNITED STATES v. ALVAREZ | Supreme Court | LII / Legal Information Institute
    magnetism of the word Olym pic when organizing an athletic competition internal quotation marks omitted Permitting the government to decree this speech to be a criminal offense whether shouted from the rooftops or made in a barely audible whisper would endorse government authority to compile a list of subjects about which false statements are punishable That governmental power has no clear limiting principle Our constitutional tradition stands against the idea that we need Oceania s Ministry of Truth See G Orwell Nineteen Eighty Four 1949 Centennial ed 2003 Were this law to be sustained there could be an endless list of subjects the National Government or the States could single out Where false claims are made to effect a fraud or secure moneys or other valuable considerations say offers of employment it is well established that the Government may restrict speech without affronting the First Amendment See e g Virginia Bd of Pharmacy 425 U S at 771 noting that fraudulent speech generally falls outside the protections of the First Amendment But the Stolen Valor Act is not so limited in its reach Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech absent any evidence that the speech was used to gain a material advantage it would give government a broad censorial power unprecedented in this Court s cases or in our constitutional tradition The mere potential for the exercise of that power casts a chill a chill the First Amendment cannot permit if free speech thought and discourse are to remain a foundation of our freedom IV The previous discussion suffices to show that the Act conflicts with free speech principles But even when examined within its own narrow sphere of operation the Act cannot survive In assessing content based restrictions on protected speech the Court has not adopted a free wheeling approach see Stevens 559 U S at slip op at 7 The First Amendment s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits but rather has applied the most exacting scrutiny Turner Broadcasting System Inc v FCC 512 U S 622 642 1994 Although the objectives the Government seeks to further by the statute are not without significance the Court must and now does find the Act does not satisfy exacting scrutiny The Government is correct when it states military medals serve the important public function of recognizing and expressing gratitude for acts of heroism and sacrifice in military service and also foste r morale mission accomplishment and esprit de corps among service members Brief for United States 37 38 General George Washington observed that an award for valor would cherish a virtuous ambition in soldiers as well as foster and encourage every species of military merit General Orders of George Washington Issued at Newburgh on the Hudson 1782 1783 Aug 7 1782 p 30 E Boynton ed 1883 Time has not diminished this idea In periods of war and peace alike public recognition of valor and noble sacrifice by men and women in uniform reinforces the pride and national resolve that the military relies upon to fulfill its mission These interests are related to the integrity of the military honors system in general and the Congressional Medal of Honor in particular Although millions have served with brave resolve the Medal which is the highest military award for valor against an enemy force has been given just 3 476 times Established in 1861 the Medal is reserved for those who have distinguished themselves conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty 10 U S C 3741 Army 6241 Navy and Marine Corps 8741 Air Force 14 U S C 491 Coast Guard The stories of those who earned the Medal inspire and fascinate from Dakota Meyer who in 2009 drove five times into the midst of a Taliban ambush to save 36 lives see Curtis President Obama Awards Medal of Honor to Dakota Meyer The White House Blog Sept 15 2011 all Internet materials as visited June 25 2012 and available in Clerk of Court s case file to Desmond Doss who served as an army medic on Okinawa and on June 5 1945 rescued 75 fellow soldiers and who after being wounded gave up his own place on a stretcher so others could be taken to safety see America s Heroes 88 90 J Willbanks ed 2011 to William Carney who sustained multiple gunshot wounds to the head chest legs and arm and yet carried the flag to ensure it did not touch the ground during the Union army s assault on Fort Wagner in July 1863 id at 44 45 The rare acts of courage the Medal celebrates led President Truman to say he would rather have that medal round my neck than be president of the United States Truman Gives No 1 Army Medal to 15 Heroes Washington Post Oct 13 1945 p 5 The Government s interest in protecting the integrity of the Medal of Honor is beyond question But to recite the Government s compelling interests is not to end the matter The First Amendment requires that the Government s chosen restriction on the speech at issue be actually necessary to achieve its interest En tertainment Merchants Assn 564 U S at slip op at 12 There must be a direct causal link between the restriction imposed and the injury to be prevented See ibid The link between the Government s interest in protecting the integrity of the military honors system and the Act s restriction on the false claims of liars like respondent has not been shown Although appearing to concede that an isolated misrepresentation by itself would not tarnish the meaning of military honors the Government asserts it is common sense that false representations have the tendency to dilute the value and meaning of military awards Brief for United States 49 54 It must be acknowledged that when a pretender claims the Medal to be his own the lie might harm the Government by demeaning the high purpose of the award diminishing the honor it confirms and creating the appearance that the Medal is awarded more often than is true Furthermore the lie may offend the true holders of the Medal From one perspective it in sults their bravery and high principles when falsehood puts them in the unworthy company of a pretender Yet these interests do not satisfy the Government s heavy burden when it seeks to regulate protected speech See United States v Playboy Entertainment Group Inc 529 U S 803 818 2000 The Government points to no evidence to support its claim that the public s general perception of military awards is diluted by false claims such as those made by Alvarez Cf Entertainment Merchants Assn supra at slip op at 12 13 analyzing and rejecting the findings of research psychologists demonstrating the causal link between violent video games and harmful effects on children As one of the Government s amici notes there is nothing that charlatans such as Xavier Alvarez can do to stain the Medal winners honor Brief for Veterans of Foreign Wars of the United States et al as Amici Curiae 1 This general proposition is sound even if true holders of the Medal might experience anger and frustration The lack of a causal link between the Government s stated interest and the Act is not the only way in which the Act is not actually necessary to achieve the Government s stated interest The Government has not shown and cannot show why counterspeech would not suffice to achieve its interest The facts of this case indicate that the dynamics of free speech of counterspeech of refutation can overcome the lie Respondent lied at a public meeting Even before the FBI began investigating him for his false statements Alvarez was perceived as a phony 617 F 3d at 1211 Once the lie was made public he was ridiculed online see Brief for Respondent 3 his actions were reported in the press see Ortega Alvarez Again Denies Claim Ontario CA Inland Valley Daily Bulletin Sept 27 2007 and a fellow board member called for his resignation see e g Bigham Water District Rep Requests Alvarez Resign in Wake of False Medal Claim San Bernardino Cty CA The Sun May 21 2008 There is good reason to believe that a similar fate would befall other false claimants See Brief for Reporters Committee for Freedom of the Press et al as Amici Curiae 30 33 listing numerous examples of public exposure of false claimants Indeed the outrage and contempt expressed for respondent s lies can serve to reawaken and reinforce the public s respect for the Medal its recipients and its high purpose The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the proposition that the public will be misled by the claims of charlatans or become cynical of those whose heroic deeds earned them the Medal by right See e g Well Done Washington Post Feb 5 1943 p 8 reporting on Pres ident Roosevelt s awarding the Congressional Medal of Honor to Maj Gen Alexander Vandegrift Devroy Medal of Honor Given to 2 Killed in Somalia Washington Post May 24 1994 p A6 reporting on President Clinton s awarding the Congressional Medal of Honor to two special forces soldiers killed during operations in Somalia The remedy for speech that is false is speech that is true This is the ordinary course in a free society The response to the unreasoned is the rational to the uninformed the enlightened to the straight out lie the simple truth See Whitney v California 274 U S 357 377 1927 Brandeis J concurring If there be time to expose through discussion the falsehood and fallacies to avert the evil by the processes of education the remedy to be ap plied is more speech not enforced silence The theory of our Constitution is that the best test of truth is the power of the thought to get itself accepted in the competition of the market Abrams v United States 250 U S 616 630 1919 Holmes J dissenting The First Amendment itself ensures the right to respond to speech we do not like and for good reason Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person And suppression of speech by the government can make exposure of falsity more difficult not less so Society has the right and civic duty to engage in open dynamic rational discourse These ends are not well served when the government seeks to orchestrate public discussion through content based mandates Expressing its concern that counterspeech is insuf ficient the Government responds that because some military records have been lost some claims are un verifiable Brief for United States 50 This proves little however for without verifiable records successful criminal prosecution under the Act would be more difficult in any event So in cases where public refutation will not serve the Government s interest the Act will not either In addition the Government claims that many false claims will remain unchallenged Id at 55 The Government provides no support for the contention And in any event in order to show that public refutation is not an adequate alternative the Government must demonstrate that unchallenged claims undermine the public s perception of the military and the integrity of its awards system This showing has not been made It is a fair assumption that any true holders of the Medal who had heard of Alvarez s false claims would have been fully vindicated by the community s expression of outrage showing as it did the Nation s high regard for the Medal The same can be said for the Government s interest The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradi tion Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth Truth needs neither handcuffs nor a badge for its vindication In addition when the Government seeks to regulate protected speech the restriction must be the least restrictive means among available effective alternatives Ashcroft 542 U S at 666 There is however at least one less speech restrictive means by which the Government could likely protect the integrity of the military awards system A Government created database could list Congressional Medal of Honor winners Were a database accessible through the Internet it would be easy to verify and expose false claims It appears some private individuals have already created databases similar to this see Brief for Respondent 25 and at least one data base of past winners is online and fully searchable see Congressional Medal of Honor Society Full Archive http www cmohs org recipient archive php The Solicitor General responds that although Congress and the Department of Defense investigated the feasibility of establishing a database in 2008 the Government concluded that such a database would be impracticable and insuf ficiently comprehensive Brief for United States 55 Without more explanation it is difficult to assess the Gov ernment s claim especially when at least one database of Congressional Medal of Honor winners already exists The Government may have responses to some of these criticisms but there has been no clear showing of the necessity of the statute the necessity required by exacting scrutiny The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace Though few might find respondent s statements anything but contemptible his right to make those statements is protected by the Constitution s guarantee of freedom of speech and expression The Stolen Valor Act infringes upon speech protected by the First Amendment The judgment of the Court of Appeals is affirmed It is so ordered TOP Concurrence SUPREME COURT OF THE UNITED STATES No 11 210 UNITED STATES PETITIONER v XAVIER ALVAREZ on writ of certiorari to the united states court of appeals for the ninth circuit June 28 2012 Justice Breyer with whom Justice Kagan joins con curring in the judgment I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment But I do not rest my conclusion upon a strict categorical analysis Ante at 4 10 Rather I base that conclusion upon the fact that the statute works First Amendment harm while the Government can achieve its legitimate objectives in less restrictive ways I In determining whether a statute violates the First Amendment this Court has often found it appropriate to examine the fit between statutory ends and means In doing so it has examined speech related harms justifications and potential alternatives In particular it has taken account of the seriousness of the speech related harm the provision will likely cause the nature and importance of the provision s countervailing objectives the extent to which the provision will tend to achieve those objectives and whether there are other less restrictive ways of doing so Ultimately the Court has had to determine whether the statute works speech related harm that is out of proportion to its justifications Sometimes the Court has referred to this approach as intermediate scrutiny sometimes as proportionality review sometimes as an examination of fit and sometimes it has avoided the application of any label at all See e g Turner Broadcasting System Inc v FCC 512 U S 622 652 1994 intermediate scrutiny Randall v Sorrell 548 U S 230 249 2006 plurality opinion proportionality Board of Trustees of State Univ of N Y v Fox 492 U S 469 480 1989 requiring a fit be tween means and ends that is in proportion to the in terest served In re R M J 455 U S 191 203 1982 I nterference with speech must be in proportion to the substantial governmental interest served Pickering v Board of Ed of Township High School Dist 205 Will Cty 391 U S 563 568 1968 Regardless of the label some such approach is necessary if the First Amendment is to offer proper protection in the many instances in which a statute adversely affects constitutionally protected interests but warrants neither near automatic condemnation as strict scrutiny implies nor near automatic approval as is implicit in rational basis review See e g Turner Broadcasting System Inc supra at 641 652 must carry cable regulations Central Hudson Gas Elec Corp v Public Serv Comm n of N Y 447 U S 557 566 1980 nonmisleading commercial speech Burdick v Takushi 504 U S 428 434 1992 election regulation Pickering supra at 568 government employee speech United States v O Brien 391 U S 367 377 1968 application of generally appli cable laws to expressive conduct I have used the term proportionality to describe this approach Thompson v Western States Medical Center 535 U S 357 388 2002 dissenting opinion see also Bartnicki v Vopper 532 U S 514 536 2001 concurring opinion Nixon v Shrink Missouri Government PAC 528 U S 377 403 2000 concurring opinion But in this case the Court s term intermediate scrutiny describes what I think we should do As the dissent points out there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable dan ger of suppressing truthful speech Post at 14 Laws restricting false statements about philosophy religion history the social sciences the arts and the like raise such concerns and in many contexts have called for strict scrutiny But this case does not involve such a law The dangers of suppressing valuable ideas are lower where as here the regulations concern false statements about easily verifiable facts that do not concern such subject matter Such false factual statements are less likely than are true factual statements to make a valuable contribution to the marketplace of ideas And the government often has good reasons to prohibit such false speech See infra at 5 7 listing examples of statutes and doctrines regulating false factual speech But its regulation can nonetheless threaten speech related harms Those circumstances lead me to apply what the Court has termed intermediate scrutiny here II A The Stolen Valor Act makes it a crime falsely to represen t oneself to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States 18 U S C 704 b I would read the statute favorably to the Government as criminalizing only false factual statements made with knowledge of their fal sity and with the intent that they be taken as true See Staples v United States 511 U S 600 605 1994 courts construe statutes in light of the background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded cf New York Times Co v Sullivan 376 U S 254 280 1964 First Amendment allows a public official to recover for defamation only upon a showing of actual malice As so interpreted the statute covers only lies But although this interpretation diminishes the extent to which the statute endangers First Amendment values it does not eliminate the threat I must concede as the Government points out that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection See e g BE K Constr Co v NLRB 536 U S 516 531 2002 F alse statements may be unprotected for their own sake Hustler Magazine Inc v Falwell 485 U S 46 52 1988 False statements of fact are particularly valueless Gertz v Robert Welch Inc 418 U S 323 340 1974 T he erroneous statement of fact is not worthy of constitutional protection But these judicial statements cannot be read to mean no protection at all False factual statements can serve useful human objectives for example in social contexts where they may prevent embarrassment protect privacy shield a person from prejudice provide the sick with comfort or preserve a child s innocence in public contexts where they may stop a panic or otherwise preserve calm in the face of danger and even in technical philosophical and scientific contexts where as Socrates methods suggest examination of a false statement even if made deliberately to mislead can promote a form of thought that ultimately helps realize the truth See e g 638 F 3d 666 673 675 CA9 2011 Kozinski J concurring in denial of rehearing en banc providing numerous examples S Bok Lying Moral Choice in Public and Private Life 1999 same New York Times Co supra at 279 n 19 Even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clearer perception and livelier impression of truth produced by its collision with error quoting J Mill On Liberty 15 Blackwell ed 1947 Moreover as the Court has often said the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements thereby chilling a kind of speech that lies at the First Amendment s heart See e g Gertz supra at 340 341 Hence the Court emphasizes mens rea requirements that provide breathing room for more valuable speech by reducing an honest speaker s fear that he may accidentally incur liability for speaking Further the pervasiveness of false statements made for better or for worse motives made thoughtlessly or de liberately made with or without accompanying harm provides a weapon to a government broadly empowered to prosecute falsity without more And those who are unpopular may fear that the government will use that weapon selectively say by prosecuting a pacifist who sup ports his cause by falsely claiming to have been a war hero while ignoring members of other political groups who might make similar false claims I also must concede that many statutes and common law doctrines make the utterance of certain kinds of false statements unlawful Those prohibitions however tend to be narrower than the statute before us in that they limit the scope of their application sometimes by requiring proof of specific harm to identifiable victims sometimes by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur and sometimes by limiting the prohibited lies to those that are particularly likely to produce harm Fraud statutes for example typically require proof of a misrepresentation that is material upon which the victim relied and which caused actual injury See Restatement Second of Torts 525 1976 Defamation statutes focus upon statements of a kind that harm the reputation of another or deter third parties from association or dealing with the victim See id 558 559 Torts involving the intentional infliction of emotional distress like torts involving placing a victim in a false light concern falsehoods that tend to cause harm to a specific victim of an emotional dignitary or privacy related kind See id 652E Perjury statutes prohibit a particular set of false statements those made under oath while requiring a showing of materiality See e g 18 U S C 1621 Statutes forbidding lying to a government official not under oath are typically limited to circumstances where a lie is likely to work particular and specific harm by interfering with the functioning of a government department and those statutes also require a showing of materiality See e g 1001 Statutes prohibiting false claims of terrorist attacks or other lies about the commission of crimes or catastrophes require proof that substantial public harm be directly foreseeable or if not involve false statements that are very likely to bring about that harm See e g 47 CFR 73 1217 2011 requiring showing of foreseeability and actual substantial harm 18 U S C 1038 a 1 prohibiting knowing false statements claiming that terrorist attacks have taken are taking or will take place Statutes forbidding impersonation of a public official typically focus on acts of impersonation not mere speech and may require a showing that for example someone was deceived into following a course of action he would not have pursued but for the deceitful conduct United States v Lepowitch 318 U S 702 704 1943 see e g 912 liability attaches to w hoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States and acts as such emphasis added Statutes prohibiting trademark infringement present perhaps the closest analogy to the present statute Trademarks identify the source of a good and infringement causes harm by causing confusion among potential customers about the source and thereby diluting the value of the mark to its owner to consumers and to the econ omy Similarly a false claim of possession of a medal or other honor creates confusion about who is entitled to wear it thus diluting its value to those who have earned it to their families and to their country But trademark statutes are focused upon commercial and promotional activities that are likely to dilute the value of a mark Indeed they typically require a showing of likely confusion a showing that tends to assure that the feared harm will in fact take place See 15 U S C 1114 1 a KP Permanent Make Up Inc v Lasting Impression I Inc 543 U S 111 117 2004 see also San Francisco Arts Athletics Inc v United States Olympic Comm 483 U S 522 540 548 1987 upholding statute giving the United States Olympic Committee the right to prohibit certain commercial and promotional uses of the word Olympic While this list is not exhaustive it is sufficient to show that few statutes if any simply prohibit without limitation the telling of a lie even a lie about one particular matter Instead in virtually all these instances limitations of context requirements of proof of injury and the like narrow the statute to a subset of lies where specific harm is more likely to occur The limitations help to make certain that the statute does not allow its threat of liability or criminal punishment to roam at large discouraging or forbidding the telling of the lie in contexts where harm is unlikely or the need for the prohibition is small The statute before us lacks any such limiting features It may be construed to prohibit only knowing and intentional acts of deception about readily verifiable facts within the personal knowledge of the speaker thus reducing the risk that valuable speech is chilled Supra at 3 4 But it still ranges very broadly And that breadth means that it creates a significant risk of First Amendment harm As written it applies in family social or other private contexts where lies will often cause little harm It also applies in political contexts where although such lies are more likely to cause harm the risk of censorious se lectivity by prosecutors is also high Further given the potential haziness of individual memory along with the large number of military awards covered ranging from medals for rifle marksmanship to the Congressional Medal of Honor there remains a risk of chilling that is not completely eliminated by mens rea requirements a speaker might still be worried about being prosecuted for a careless false statement even if he does not have the intent required to render him liable And so the prohibition may be applied where it should not be applied for example to bar stool braggadocio or in the political arena subtly but selectively to speakers that the Government does not like These considerations lead me to believe that the statute as written risks significant First Amendment harm B Like both the plurality and the dissent I believe the statute nonetheless has substantial justification It seeks to protect the interests of those who have sacrificed their health and life for their country The statute serves this interest by seeking to preserve intact the country s recognition of that sacrifice in the form of military honors To permit those who have not earned those honors to claim otherwise dilutes the value of the awards Indeed the Nation cannot fully honor those who have sacrificed so much for their country s honor unless those who claim to have received its military awards tell the truth Thus the statute risks harming protected interests but only in order to achieve a substantial countervailing objective C We must therefore ask whether it is possible substantially to achieve the Government s objective in less burdensome ways In my view the answer to this question is yes Some potential First Amendment threats can be alleviated by interpreting the statute to require knowledge of falsity etc Supra at 3 4 But other First Amendment risks primarily risks flowing from breadth of coverage remain Supra at 4 5 7 8 As is indicated by the limitations on the scope of the many other kinds of statutes regulating false factual speech supra at 5 7 it should be possible significantly to diminish or eliminate these re maining risks by enacting a similar but more finely tailored statute For example not all military awards are alike Congress might determine that some warrant greater protection than others And a more finely tailored statute might as other kinds of statutes prohibiting false factual statements have done insist upon a showing that the false statement caused specific harm or at least was material or focus its coverage on lies most likely to be harmful or on contexts where such lies are most likely to cause harm I recognize that in some contexts particularly political contexts such a narrowing will not always be easy to achieve In the political arena a false statement is more likely to make a behavioral difference say by leading the listeners to vote for the speaker but at the same time criminal prosecution is particularly dangerous say by radically changing a potential election result and consequently can more easily result in censorship of speakers and their ideas Thus the statute may have to be significantly narrowed in its applications Some lower courts have upheld the constitutionality of roughly comparable but narrowly tailored statutes in political contexts See e g United We Stand America Inc v United We Stand America New York Inc 128 F 3d 86 93 CA2 1997 upholding against First Amendment challenge application of Lanham Act to a political organization Treasure of the Committee to Elect Gerald D Lostracco v Fox 150 Mich App 617 389 N W 2d 446 1986 upholding under First Amendment statute prohibiting campaign material falsely claiming that one is an incumbent Without expressing any view on the validity of those cases I would also note like the plurality that in this area more accurate information will normally counteract the lie And an accurate publicly available register of military awards easily obtainable by political opponents may well adequately protect the integrity of an award against those who would falsely claim to have earned it See ante at 17 18 And so it is likely that a more narrowly tailored statute combined with such information disseminating devices will effectively serve Congress end The Government has provided no convincing explanation as to why a more finely tailored statute would not work In my own view such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective That being so I find the statute as presently drafted works disproportionate constitutional harm It consequently fails intermediate scrutiny and so violates the First Amendment For these reasons I concur in the Court s judgment TOP Dissent SUPREME COURT OF THE UNITED STATES No 11 210 UNITED STATES PETITIONER v XAVIER ALVAREZ on writ of certiorari to the united states court of appeals for the ninth circuit June 28 2012 Justice Alito with whom Justice Scalia and Jus tice Thomas join dissenting Only the bravest of the brave are awarded the Congressional Medal of Honor but the Court today holds that every American has a constitutional right to claim to have received this singular award The Court strikes down the Stolen Valor Act of 2005 which was enacted to stem an epidemic of false claims about military decorations These lies Congress reasonably concluded were undermining our country s system of military honors and inflicting real harm on actual medal recipients and their families Building on earlier efforts to protect the military awards system Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom of speech The statute reaches only knowingly false statements about hard facts directly within a speaker s per sonal knowledge These lies have no value in and of themselves and proscribing them does not chill any valuable speech By holding that the First Amendment nevertheless shields these lies the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest I would adhere to that principle and would thus uphold the constitutionality of this valuable law I The Stolen Valor Act makes it a misdemeanor to falsely represen t oneself as having been awarded a medal decoration or badge for service in the Armed Forces of the United States 18 U S C 704 b Properly construed this statute is limited in five significant respects First the Act applies to only a narrow category of false representations about objective facts that can almost always be proved or disproved with near certainty Second the Act concerns facts that are squarely within the speaker s personal knowledge Third as the Government maintains see Brief for United States 15 17 and both the plurality see ante at 7 and the concurrence see ante at 3 Breyer J concurring in judgment seemingly accept a conviction under the Act requires proof beyond a reasonable doubt that the speaker actually knew that the representation was false 1 Fourth the Act applies only to statements that could reasonably be interpreted as communicating actual facts it does not reach dramatic performances satire parody hyperbole or the like 2 Finally the Act is strictly viewpoint neutral The false statements proscribed by the Act are highly unlikely to be tied to any particular political or ideological message In the rare cases where that is not so the Act applies equally to all false statements whether they tend to disparage or commend the Government the military or the system of mil itary honors The Stolen Valor Act follows a long tradition of efforts to protect our country s system of military honors When George Washington as the commander of the Continental Army created the very first honorary badges of distinction for service in our country s military he established a rigorous system to ensure that these awards would be received and worn by only the truly deserving See General Orders of George Washington Issued at Newburgh on the Hudson 1782 1783 p 35 E Boynton ed 1883 reprint 1973 requiring the submission of incontest ible proof of singularly meritorious action to the Commander in Chief Washington warned that anyone with the insolence to assume a badge that had not actually been earned would be severely punished Id at 34 Building on this tradition Congress long ago made it a federal offense for anyone to wear manufacture or sell certain military decorations without authorization See Act of Feb 24 1923 ch 110 42 Stat 1286 codified as amended at 18 U S C 704 a Although this Court has never opined on the constitutionality of that particular provision we have said that 702

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    of any typographical or other formal errors in order that corrections may be made before the preliminary print goes to press SUPREME COURT OF THE UNITED STATES No 10 708 FIRST AMERICAN FINANCIAL CORPORATION SUC CESSOR IN INTEREST TO THE FIRST AMERI CAN CORPORATION et al PETITIONERS v DENISE P EDWARDS on writ of certiorari to the united states court of appeals for the ninth circuit June 28 2012 Per

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  • ARIZONA v. UNITED STATES | Supreme Court | LII / Legal Information Institute
    of 2 B The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect There is a basic uncertainty about what the law means and how it will be enforced At this stage without the benefit of a definitive interpretation from the state courts it would be inappropriate to assume 2 B will be construed in a way that creates a conflict with federal law Cf Fox v Washington 236 U S 273 277 1915 So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed and it is to be presumed that state laws will be construed in that way by the state courts citation omitted As a result the United States cannot prevail in its current challenge See Huron Portland Cement Co v Detroit 362 U S 440 446 1960 To hold otherwise would be to ignore the teaching of this Court s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect V Immigration policy shapes the destiny of the Nation On May 24 2012 at one of this Nation s most distinguished museums of history a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem There they took the oath to become American citizens The Smithsonian News Release Smithsonian Citizenship Ceremony Welcomes a Dozen New Americans May 24 2012 online at http newsdesk si edu releases These naturalization cere monies bring together men and women of different ori gins who now share a common destiny They swear a common oath to renounce fidelity to foreign princes to defend the Constitution and to bear arms on behalf of the country when required by law 8 CFR 337 1 a 2012 The history of the United States is in part made of the stories talents and lasting contributions of those who crossed oceans and deserts to come here The National Government has significant power to regulate immigration With power comes responsibility and the sound exercise of national power over immigration depends on the Nation s meeting its responsibility to base its laws on a political will informed by searching thoughtful rational civic discourse Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues but the State may not pursue policies that undermine federal law The United States has established that 3 5 C and 6 of S B 1070 are preempted It was improper however to enjoin 2 B before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part The case is remanded for further proceedings consistent with this opinion It is so ordered Justice Kagan took no part in the consideration or decision of this case TOP Concurrence SUPREME COURT OF THE UNITED STATES No 11 182 ARIZONA et al PETITIONERS v UNITED STATES on writ of certiorari to the united states court of appeals for the ninth circuit June 25 2012 Justice Scalia concurring in part and dissenting in part The United States is an indivisible Union of sovereign States Hinderlider v La Plata River Cherry Creek Ditch Co 304 U S 92 104 1938 Today s opinion approving virtually all of the Ninth Circuit s injunction against enforcement of the four challenged provisions of Arizona s law deprives States of what most would con sider the defining characteristic of sovereignty the power to exclude from the sovereign s territory people who have no right to be there Neither the Constitution itself nor even any law passed by Congress supports this result I dissent I As a sovereign Arizona has the inherent power to exclude persons from its territory subject only to those limitations expressed in the Constitution or constitution ally imposed by Congress That power to exclude has long been recognized as inherent in sovereignty Emer de Vattel s seminal 1758 treatise on the Law of Nations stated The sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases or to certain persons or for certain particular pur poses according as he may think it advantageous to the state There is nothing in all this that does not flow from the rights of domain and sovereignty every one is obliged to pay respect to the prohibition and whoever dares violate it incurs the penalty decreed to render it effectual The Law of Nations bk II ch VII 94 p 309 B Kapossy R Whatmore eds 2008 See also I R Phillimore Commentaries upon International Law pt III ch X p 233 1854 It is a received maxim of International Law that the Government of a State may prohibit the entrance of strangers into the country 1 There is no doubt that before the adoption of the constitution of the United States each State had the author ity to prevent itself from being burdened by an influx of persons Mayor of New York v Miln 11 Pet 102 132 133 1837 And the Constitution did not strip the States of that authority To the contrary two of the Constitution s provisions were designed to enable the States to prevent the intrusion of obnoxious aliens through other States Letter from James Madison to Edmund Randolph Aug 27 1782 in 1 The Writings of James Madison 226 1900 accord The Federalist No 42 pp 269 271 C Rossiter ed 1961 J Madison The Articles of Confederation had provided that the free inhabitants of each of these States paupers vagabonds and fugitives from justice excepted shall be entitled to all privileges and immunities of free citizens in the several States Articles of Confederation Art IV This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another To remedy this the Constitution s Privileges and Immunities Clause provided that t he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States Art IV 2 cl 1 emphasis added But if one State had particularly lax citizenship standards it might still serve as a gateway for the entry of obnoxious aliens into other States This problem was solved by authorizing the general government to establish a uniform rule of naturalization throughout the United States The Federalist No 42 supra at 271 see Art I 8 cl 4 In other words the naturalization power was given to Congress not to abrogate States power to exclude those they did not want but to vindicate it Two other provisions of the Constitution are an acknowledgment of the States sovereign interest in protecting their borders Article I provides that n o State shall without the Consent of the Congress lay any Imposts or Duties on Imports or Exports except what may be absolutely necessary for executing it s inspection Laws Art I 10 cl 2 emphasis added This assumed what everyone assumed that the States could exclude from their territory dangerous or unwholesome goods A later portion of the same section provides that n o State shall without the Consent of Congress engage in War unless actually invaded or in such imminent Danger as will not admit of delay Art I 10 cl 3 emphasis added This limits the States sovereignty in a way not relevant here but leaves intact their inherent power to protect their territory Notwithstanding t he myth of an era of unrestricted immigration in the first 100 years of the Republic the States enacted numerous laws restricting the immigra tion of certain classes of aliens including convicted criminals indigents persons with contagious diseases and in Southern States freed blacks Neuman The Lost Century of American Immigration 1776 1875 93 Colum L Rev 1833 1835 1841 1880 1993 State laws not only pro vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration 2 Id at 1883 In fact the controversy surrounding the Alien and Sedition Acts involved a debate over whether under the Constitution the States had exclusive authority to enact such immigration laws Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence see e g New York Times Co v Sullivan 376 U S 254 276 1964 but one of the Alien Acts 3 also aroused controversy at the time Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled That it shall be lawful for the President of the United States at any time during the continuance of this act to order all such aliens as he shall judge dangerous to the peace and safety of the United States or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof to depart out of the territory of the United States An Act concerning Aliens 1 Stat 570 570 571 The Kentucky and Virginia Resolutions written in denunciation of these Acts insisted that the power to exclude unwanted aliens rested solely in the States Jefferson s Kentucky Resolutions insisted that alien friends are under the jurisdiction and protection of the laws of the state wherein they are and that no power over them has been delegated to the United States nor prohibited to the individual states distinct from their power over citizens Kentucky Resolutions of 1798 reprinted in J Powell Languages of Power A Sourcebook of Early American Constitutional History 131 1991 Madison s Virginia Resolutions likewise contended that the Alien Act purported to give the President a power nowhere delegated to the federal government Virginia Resolutions of 1798 reprinted in Powell supra at 134 emphasis omitted Notably moreover the Federalist proponents of the Act defended it primarily on the ground that t he removal of aliens is the usual preliminary of hostility and could therefore be justified in exercise of the Federal Government s war powers Massachussets Resolutions in Reply to Virginia reprinted in Powell supra at 136 In Mayor of New York v Miln this Court considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose the name place of birth and last legal settlement age and occupation of all passengers with the intention of proceeding to the said city 11 Pet at 130 131 After discussing the sovereign authority to regulate the entrance of foreigners described by De Vattel the Court said The power of New York to pass this law having undeniably existed at the formation of the constitution the simply inquiry is whether by that instrument it was taken from the states and granted to congress for if it were not it yet remains with them Id at 132 And the Court held that it remains Id at 139 II One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration but no doubt about the power of the States to do so Since the founding era though not immediately doubt about the Federal Government s power has disappeared Indeed primary responsibility for immigration policy has shifted from the States to the Federal Government Congress exercised its power t o establish an uniform Rule of Naturalization Art I 8 cl 4 very early on see An Act to establish an uniform Rule of Naturalization 1 Stat 103 But with the fleeting exception of the Alien Act Congress did not enact any legislation regulating immigration for the better part of a century In 1862 Congress passed An Act to prohibit the Coolie Trade by American Citizens in American Vessels which prohibited procuring Chinese nationals to be disposed of or sold or transferred for any term of years or for any time what ever as servants or apprentices or to be held to service or labor 12 Stat 340 Then in 1875 Congress amended that act to bar admission to Chinese Japanese and other Asian immigrants who had entered into a contract or agreement for a term of service within the United States for lewd and immoral purposes An act supplementary to the acts in relation to immigration ch 141 18 Stat 477 And in 1882 Congress enacted the first general immi gration statute See An act to regulate Immigration 22 Stat 214 Of course it hardly bears mention that Federal immigration law is now extensive I accept that as a valid exercise of federal power not because of the Naturalization Clause it has no necessary connection to citizenship but because it is an inherent attribute of sovereignty no less for the United States than for the States As this Court has said it is an accepted maxim of international law that every sovereign nation has the power as inherent in sovereignty and essential to self preservation to forbid the entrance of foreigners within its dominions Fong Yue Ting v United States 149 U S 698 705 1893 quoting Ekiu v United States 142 U S 651 659 1892 That is why there was no need to set forth control of immigration as one of the enumer ated powers of Congress although an acknowledgment of that power as well as of the States similar power subject to federal abridgment was contained in Art I 9 which provided that t he Migration or Importation of such Persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight In light of the predominance of federal immigration restrictions in modern times it is easy to lose sight of the States traditional role in regulating immigration and to overlook their sovereign prerogative to do so I accept as a given that State regulation is excluded by the Constitution when 1 it has been prohibited by a valid federal law or 2 it conflicts with federal regulation when for example it admits those whom federal regulation would exclude or excludes those whom federal regulation would admit Possibility 1 need not be considered here there is no federal law prohibiting the States sovereign power to ex clude assuming federal authority to enact such a law The mere existence of federal action in the immigration area and the so called field preemption arising from that action upon which the Court s opinion so heavily relies ante at 9 11 cannot be regarded as such a prohibition We are not talking here about a federal law prohibiting the States from regulating bubble gum advertising or even the construction of nuclear plants We are talking about a federal law going to the core of state sovereignty the power to exclude Like elimination of the States other inherent sovereign power immunity from suit elimina tion of the States sovereign power to exclude requires that Congress unequivocally expres s its intent to abrogate Seminole Tribe of Fla v Florida 517 U S 44 55 1996 internal quotation marks and citation omitted Implicit field preemption will not do Nor can federal power over illegal immigration be deemed exclusive because of what the Court s opinion solicitously calls foreign countries concern s about the status safety and security of their nationals in the United States ante at 3 The Constitution gives all those on our shores the protections of the Bill of Rights but just as those rights are not expanded for foreign nationals because of their countries views some countries for example have recently discovered the death penalty to be barbaric neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries views Even in its international relations the Federal Government must live with the inconvenient fact that it is a Union of independent States who have their own sovereign powers This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy Four years ago for example the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals because the international community and even an opinion of the International Court of Justice disapproved them See Medell n v Texas 552 U S 491 2008 We rejected that request as we should reject the Executive s invocation of foreign affairs considerations here Though it may upset foreign powers and even when the Federal Government desperately wants to avoid upsetting foreign powers the States have the right to protect their borders against foreign nationals just as they have the right to execute foreign nationals for murder What this case comes down to then is whether the Arizona law conflicts with federal immigration law whether it excludes those whom federal law would admit or admits those whom federal law would exclude It does not purport to do so It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government s inherent authority I proceed to consider the challenged provisions in detail 2 B For any lawful stop detention or arrest made by a law enforcement official in the enforcement of any other law or ordinance of a county city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States a reasonable attempt shall be made when practicable to determine the immigration status of the person except if the determination may hinder or obstruct an investigation Any person who is arrested shall have the person s immigration status determined before the person is released S B 1070 2 B as amended Ariz Rev Stat Ann 11 1051 B West 2012 The Government has conceded that even before Section 2 was enacted state and local officers had state law authority to inquire of DHS the Department of Homeland Security about a suspect s unlawful status and other wise cooperate with federal immigration officers Brief for United States 47 citing App 62 82 see also Brief for United States 48 49 That concession in my view ob viates the need for further inquiry The Government s conflict pre emption claim calls on us to determine whether under the circumstances of this particular case the State s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress Hines v Davidowitz 312 U S 52 67 1941 emphasis added It is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions something the Government s pre enforcement challenge has pretermitted The fact that a law might operate unconstitutionally under some conceivable set of circumstances is insuf ficient to render it wholly invalid since we have not recognized an overbreadth doctrine outside the limited context of the First Amendment United States v Sal erno 481 U S 739 745 1987 And on its face 2 B merely tells state officials that they are authorized to do something that they were by the Government s con cession already authorized to do The Court therefore properly rejects the Government s challenge recognizing that a t this stage without the benefit of a definitive interpretation from the state courts it would be inappropriate to assume 2B will be construed in a way that creates a conflict with federal law Ante at 23 Before reaching that conclusion however the Court goes to great length to assuage fears that state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status Ante at 22 Of course any investigatory detention including one under 2 B may become an unreasonable seizur e U S Const Amdt IV if it lasts too long See Illinois v Caballes 543 U S 405 407 2005 But that has nothing to do with this case in which the Government claims that 2 B is pre empted by federal immigration law not that anyone s Fourth Amendment rights have been violated And I know of no reason why a protracted detention that does not violate the Fourth Amendment would contradict or conflict with any federal immigration law 6 A peace officer without a warrant may arrest a person if the officer has probable cause to believe t he person to be arrested has committed any public offense that makes the person removable from the United States S B 1070 6 A 5 Ariz Rev Stat Ann 13 3883 A 5 West Supp 2011 This provision of S B 1070 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant See 13 3883 If an officer has probable cause to believe that an individual is removable by reason of a public offense then a warrant is not required to make an arrest The Government s primary contention is that 6 is pre empted by federal immigration law because it allows state officials to make arrests without regard to federal priorities Brief for United States 53 The Court s opinion focuses on limits that Congress has placed on federal officials authority to arrest remov able aliens and the possibility that state officials will make arrests to achieve Arizona s own immigration policy and without any input from the Federal Government Ante at 17 Of course on this pre enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable As Arizona points out federal law expressly provides that state officers may cooperate with the Attorney General in the identification apprehension detention or removal of aliens not lawfully present in the United States 8 U S C 1357 g 10 B and cooperation requires neither identical efforts nor prior federal approval It is consistent with the Arizona statute and with the cooperat ive system that Congress has created for state officials to arrest a removable alien contact federal immigration authorities and follow their lead on what to do next And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed violates the principle that the removal process is entrusted to the discretion of the Federal Government ante at 18 The State s detention does not represent commencement of the removal process unless the Federal Government makes it so But that is not the most important point The most important point is that as we have discussed Arizona is entitled to have its own immigration policy including a more rigorous enforcement policy so long as that does not conflict with federal law The Court says as though the point is utterly dispositive that it is not a crime for a removable alien to remain present in the United States ante at 15 It is not a federal crime to be sure But there is no reason Arizona cannot make it a state crime for a removable alien or any illegal alien for that matter to remain present in Arizona The Court quotes 8 U S C 1226 a which provides that o n a warrant issued by the Attorney General an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States Section 1357 a 2 also provides that a federal immigration official shall have power without warrant to arrest any alien in the United States if he has reason to believe that the alien so arrested is in the United States in violation of any federal immigration law or regulation and is likely to escape before a warrant can be obtained for his arrest But statutory limitations upon the actions of federal officers in enforcing the United States power to protect its borders do not on their face apply to the actions of state officers in enforcing the State s power to protect its borders There is no more reason to read these provisions as implying that state officials are subject to similar limitations than there is to read them as implying that only federal officials may arrest removable aliens And in any event neither implication would constitute the sort of clear elimination of the States sovereign power that our cases demand The Court raises concerns about unnecessary harassment of some aliens whom federal officials determine should not be removed Ante at 17 But we have no license to assume without any support in the record that Arizona officials would use their arrest authority under 6 to harass anyone And it makes no difference that federal officials might determine that some unlawfully present aliens should not be removed ibid They may well determine not to remove from the United States aliens who have no right to be here but unless and until these aliens have been given the right to remain Arizona is entitled to arrest them and at least bring them to federal officials attention which is all that 6 necessarily entails In my view the State can go further than this and punish them for their unlawful entry and presence in Arizona The Government complains that state officials might not heed federal priorities Indeed they might not particularly if those priorities include willful blindness or delib erate inattention to the presence of removable aliens in Arizona The State s whole complaint the reason this law was passed and this case has arisen is that the citizens of Arizona believe federal priorities are too lax The State has the sovereign power to protect its borders more rigorously if it wishes absent any valid federal prohibition The Executive s policy choice of lax federal enforcement does not constitute such a prohibition 3 In addition to any violation of federal law a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U S C 1304 e or 1306 a S B 1070 3 A as amended Ariz Rev Stat Ann 13 1509 A It is beyond question that a State may make violation of federal law a violation of state law as well We have held that to be so even when the interest protected is a distinctively federal interest such as protection of the dignity of the national flag see Halter v Nebraska 205 U S 34 1907 or protection of the Federal Government s ability to recruit soldiers Gilbert v Minnesota 254 U S 325 1920 T he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes Id at 331 internal quotation marks omitted Much more is that so when as here the State is protecting its own interest the integrity of its borders And we have said that explicitly with regard to illegal immigration Despite the exclusive federal control of this Nation s borders we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law and whose numbers might have a discernible impact on traditional state concerns Plyler v Doe 457 U S 202 n 23 1982 The Court s opinion relies upon Hines v Davidowitz supra Ante at 9 10 But that case did not as the Court believes establish a field preemption that implicitly eliminates the States sovereign power to exclude those whom federal law excludes It held that the States are not permitted to establish additional or auxiliary registration requirements for aliens 312 U S at 66 67 But 3 does not establish additional or auxiliary registration requirements It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law Hines does not prevent the State from relying on the federal registration system as an available aid in the enforcement of a number of statutes of the state applicable to aliens whose constitutional validity has not been questioned Id at 75 76 Stone J dissenting One such statute is Arizona s law forbidding illegal aliens to collect unemployment benefits Ariz Rev Stat Ann 23 781 B West 2012 To enforce that and other laws that validly turn on alien status Arizona has in Justice Stone s words an interest in knowing the number and whereabouts of aliens within the state and in having a means of their identification 312 U S at 75 And it can punish the aliens failure to comply with the provisions of federal law that make that knowledge and identification possible In some areas of uniquely federal concern e g fraud in a federal administrative process Buckman Co v Plaintiffs Legal Comm 531 U S 341 2001 or perjury in violation of a federally required oath In re Loney 134 U S 372 1890 this Court has held that a State has no legitimate interest in enforcing a federal scheme But the federal alien registration system is certainly not of uniquely federal interest States private entities and individuals rely on the federal registration system including the E Verify program on a regular basis Arizona s legitimate in terest in protecting among other things its unemployment benefits system is an entirely adequate basis for making the violation of federal registration and carry requirements a violation of state law as well The Court points out however ante at 11 that in some respects the state law exceeds the punishments prescribed by federal law It rules out probation and pardon which are available under federal law The answer is that it makes no difference Illegal immigrants who violate 3 violate Arizona law It is one thing to say that the Supremacy Clause prevents Arizona law from excluding those whom federal law admits It is quite something else to say that a violation of Arizona law cannot be punished more severely than a violation of federal law Especially where as here the State is defending its own sovereign interests there is no precedent for such a limitation The sale of illegal drugs for example ordinarily violates state law as well as federal law and no one thinks that the state penalties cannot exceed the federal As I have discussed moreover field preemption cannot establish a prohibition of additional state penalties in the area of immigration Finally the Government also suggests that 3 poses an obstacle to the administration of federal immigration law see Brief for United States 31 33 but there is no conflict in terms and no possibility of such conflict if the state statute makes federal law its own California v Zook 336 U S 725 735 1949 It holds no fear for me as it does for the Court that w ere 3 to come into force the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where fed eral officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies Ante at 11 That seems to me entirely appropriate when the State uses the federal law as it must as the criterion for the exercise of its own power and the implementation of its own policies of excluding those who do not belong there What I do fear and what Arizona and the States that support it fear is that federal policies of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court s opinion dutifully recites in its prologue ante at 6 but leaves unremedied in its disposition 5 C It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work solicit work in a public place or perform work as an employee or independent contractor in this state S B 1070 5 C as amended Ariz Rev Stat Ann 13 2928 C Here the Court rightly starts with De Canas v Bica 424 U S 351 1976 which involved a California law providing that n o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers Id at 352 quoting California Labor Code Ann 2805 a This Court concluded that the California law was not pre empted as Congress had neither occupied the field of regulation of employment of illegal aliens nor expressed the clear and manifest purpose of displacing such state regulation Id at 356 357 internal quotation marks omitted Thus at the time De Canas was decided 5 C would have been indubitably lawful The only relevant change is that Congress has since enacted its own restrictions on employers who hire illegal aliens 8 U S C 1324a in legislation that also includes some civil but no criminal penalties on illegal aliens who accept unlawful employment The Court concludes from this reasonably enough that Congress made a deliberate choice not to impose criminal penalties on aliens who seek or engage in unauthorized employment ante at 13 But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties Congress s intent with regard to exclusion of state law need not be guessed at but is found in the law s express pre emption provision which excludes any State or local law impos ing civil or criminal sanctions other than through licensing and similar laws upon those who employ or recruit or refer for a fee for employment unauthorized aliens 1324a h 2 emphasis added Common sense reflected in the canon expressio unius est exclusio alterius suggests that the specification of pre emption for laws punishing those who employ implies the lack of pre emption for other laws including laws punishing those who seek or accept employment The Court has no credible response to this It quotes our jurisprudence to the effect that an express pre emption provisio n does not bar the ordinary working of conflict pre emption principles Ante at 14 quoting Geier v American Honda Motor Co 529 U S 861 869 2000 internal quotation marks omitted True enough conflict preemption principles It then goes on say that since Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment i t follows that a state law to the contrary is an obstacle to the regulatory system Congress chose Ante at 15 For w here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls then the pre emptive inference can be drawn Ibid quoting Puerto Rico Dept of Consumer Affairs v ISLA Petroleum Corp 485 U S 495 503 1988 All that is a classic description not of conflict pre emption but of field pre emption which concededly does not occur beyond the terms of an express pre emption provision The Court concludes that 5 C would interfere with the careful balance struck by Congress ante at 15 another field pre emption notion by the way but that is easy to say and impossible to demonstrate The Court relies primarily on the fact that p roposals to make unauthorized work a criminal offense were debated and discussed during

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